For countries to feel comfortable taking prisoners off American hands, the U.S. has to show it is OK by taking some itself, human rights advocates say. The Obama team is considering the move.By Julian E. Barnes and Peter Nicholas January 15, 2009

Reporting from Washington -- Human rights advocates are urging the incoming Obama administration to allow some detainees from the prison at Guantanamo Bay, Cuba, to resettle as U.S. residents as part of any plan to close the controversial facility.

Taking such a step would go beyond plans outlined so far to close the prison and transfer detainees to other countries or to military prisons on the U.S. mainland. But allowing a small number -- perhaps only two or three -- to live freely in the U.S. could help persuade other countries to accept some of them as well.

"If we want European and other countries to feel comfortable taking at least some of the prisoners off American hands, the U.S. will have to show it is OK by taking some itself," said Tom Malinowski, the Washington advocacy director of Human Rights Watch.

President-elect Barack Obama's transition team is considering the option, but a Democratic official said there has been no conclusion that the resettlement option is necessary to Obama's plans.

Under the plans, Obama would issue an executive order within a week of assuming the presidency to close Guantanamo in a year, according to Democratic officials speaking on condition of anonymity because he has not yet taken office. That would give the government time to persuade other countries to take some of the detainees who no longer are considered to be a serious threat. It also would give the administration time to prepare prosecutions for other detainees in U.S. courts or in court-martial proceedings.

The incoming administration has decided to abandon the military commission system devised under President Bush, which has produced three convictions in seven years. Brooke Anderson, a transition spokeswoman, said Obama would decide how to handle detainees after his administration was in place.

"President-elect Obama has repeatedly said that he believes that the legal framework at Guantanamo has failed to successfully and swiftly prosecute terrorists, and he shares the broad bipartisan belief that Guantanamo should be closed," she said.

With time to send many of the prisoners to other countries, the plan could avert a mass transfer of the 250 detainees to a U.S. military facility, most likely at Ft. Leavenworth, Kan., or Charleston, S.C. It also could avoid the need for a new federal law that allows indefinite detention of prisoners without trial, something the incoming administration has ruled out for now.

Under the plans, only detainees who are to be prosecuted would be sent to U.S. prisons. As Justice Department lawyers prepare cases for trial, the State Department will work to transfer others to their home country or to other countries. Detainees cannot be returned to their home country if doing so would put them at risk of torture.

Many Guantanamo detainees have complained of torture during their captivity; Obama has said that tainted evidence cannot be used at trial.

On Wednesday, a federal judge in Washington ordered the release of a 21-year-old former Saudi resident who has been in custody since he was 14, saying evidence against him was unreliable. U.S. officials might appeal the ruling.

The transfer process has proved difficult for the Bush administration. Although the State Department may have better results under Obama, it still will face difficulty placing prisoners once described by the U.S. as terrorist threats.

Elisa Massimino, the executive director of Human Rights First, said resettling a few detainees in the U.S would be a wise move for Obama.

"After seven years of being fed the line that everyone there is the worst of the worst, it would help enormously if the United States would set an example that would put the lie to that, by taking one or two of the people," she said.

Allowing former detainees to live freely in the U.S. probably would be controversial. But Massimino said public concern might ease if the Obama administration were to explain the background of those allowed into the U.S.

"There will be opposition, but the facts can overcome that," Massimino said.

Ever since the Bush Administration's warrantless wiretapping program was exposed in 2005, critics have denounced it as illegal and unconstitutional. Those allegations rested solely on the fact that the Administration did not first get permission from the special court created by the 1978 Foreign Intelligence Surveillance Act. Well, as it happens, the same FISA court would beg to differ.

In a major August 2008 decision released yesterday in redacted form, the Foreign Intelligence Surveillance Court of Review, the FISA appellate panel, affirmed the government's Constitutional authority to collect national-security intelligence without judicial approval. The case was not made public before yesterday, and its details remain classified. An unnamed telecom company refused to comply with the National Security Agency's monitoring requests and claimed the program violated the Fourth Amendment's restrictions on search and seizure.

But the Constitution bans only "unreasonable" search and seizure, not all searches and seizures, and the Fourth Amendment allows for exceptions such as those under a President's Article II war powers. The courts have been explicit on this point. In 1980, the Fourth Circuit Court of Appeals held in Truong that "the Executive need not always obtain a warrant for foreign intelligence surveillance." The FISA appeals court said in its 2002 opinion In re Sealed Case that the President has "inherent authority to conduct warrantless searches to obtain foreign intelligence information" and took "for granted" that "FISA could not encroach on the President's constitutional power."

FISA established a process by which certain domestic wiretaps in the context of the Cold War could be approved, not a limit on what wiretaps were ever allowed. Though the decision applies only to the stopgap FISA measure in place between 2007 and 2008, it sets a precedent.

For all the political hysteria and media dishonesty about George W. Bush "spying on Americans," this fight was never about anything other than staging an ideological raid on the President's war powers. Barack Obama ought to be thankful that the FISA court has knocked the bottom out of this gambit, just in time for him to take office.

Shhh: Obama may create “classified loophole” for enhanced interrogationsposted at 4:12 pm on January 16, 2009 by Allahpundit

The news here is that this isn’t news. Less than a week after the election, rumors were already swirling that he was going to retain the option “in certain cases” to use procedures not authorized by the Army Field Manual. Then the left got him to back down on appointing John Brennan, who’d defended some of Bush’s interrogation policies, as director of the CIA. I thought that signaled the end of heart-ache for Andrew Sullivan, but no: Not only might Brennan end up being placed in a supervisory role, evidently The One’s still flirting with a little presidential prerogative when it comes to especially “difficult” subjects.

For Obama, who repeatedly insisted during the 2008 presidential campaign and the transition period that “America doesn’t torture,” a classified loophole would allow him to back up his vow to end harsh interrogations while retaining a full range of presidential options in conducting the war against terrorism.

The proposed loophole, which could come in the form of a classified annex to the manual, would satisfy intelligence experts who fear that an outright ban of so-called enhanced interrogation techniques would limit the government in obtaining threat information that could save American lives. It would also preserve Obama’s flexibility to authorize any interrogation tactics he might deem necessary for national security.

However, such a move would frustrate Senate Democrats and human rights, retired military and religious groups that have pressed for a government-wide prohibition on methods they describe as torture…

“That would not be good,” said the Rev. Richard Killmer, executive director of the National Religious Campaign Against Torture. “We don’t need to be able to torture and we don’t need to engage in any interrogation techniques that are not humane. And unless we have absolute clarity that these interrogation techniques will not be used, they are not going to be able to say that.”

Indeed. How is Obama upholding his vow to end harsh interrogations if he’s not ending harsh interrogations? All he’s doing is scaling it down from the level of official policy to an ad hoc contingency, which makes it even more arbitrary and potentially abused. Exit question: The left won’t cut him a break on this the way they will on, say, TARP; absolutist opposition to harsh interrogation in whatever form, from barking dogs on up, is now as central to “progressive” identity as support for abortion is. How can he make them happy while still preserving the option he needs for emergencies? He’s not going to risk his reelection on being caught short-handed in a ticking-bomb scenario.

If our liberal and Democratic friends start from the proposition that BO is an honorable man, then what lesson are they to draw from the fact that BO has spoken respectfully about VP Cheney's advice in this regard? What lesson are they to draw from this decision of his?

I might also note that it reflects favorably on His Glibness that he could man up and speak well of Cheney on precisely this point and take the action that he is.

Campaign promises are so much easier to adhere to when they're strictly hypothetical, as Barack Obama is discovering. The then-President-elect said 10 days ago on ABC that while he still plans to close Guantanamo, "it is more difficult than I think a lot of people realize" and that "many" of the enemy combatants are "very dangerous."

APMerely for gesturing at this reality, Mr. Obama suffered the blunt-force trauma of his left-wing allies, and the panicked transition leaked new details on the Administration's intentions last week. On Tuesday the Pentagon halted military commissions at Guantanamo for 120 days, and reports as we went to press yesterday said Mr. Obama would sign an executive order today that the base be closed within a year. This was after he told the Washington Post that closure might take even longer. Isn't responsibility fun?

The first practical question is where to transfer Khalid Sheikh Mohammed and the 245 or so other remaining Gitmo prisoners. Dangerous enemy combatants can't simply be released into the streets. The Obama camp says that after reviewing the classified files, it will try to repatriate as many as safely possible. But 60 already cleared for release remain because they may be persecuted by their home countries. And even Mr. Obama's vaunted diplomacy is unlikely to convince rights-protecting countries to resettle people he believes are too dangerous to release in the U.S. -- and the more willing Mr. Obama is to release prisoners, the more difficult this problem will become.

One suggestion is moving the remaining prisoners to Kansas's Fort Leavenworth, but state politicians are already sounding a red alert. The military base is integrated into the community and, lacking Guantanamo's isolation and defense capacities, would instantly become a potential terror target. Expect similar protests from other states that are involuntarily entered in this sweepstakes.

In any event, this option merely relocates Guantanamo to American soil under another name. The core challenge is not a matter of geography but ensuring a stable legal framework for detaining and punishing fighters engaged in unconventional warfare against the U.S.

In the Military Commissions Act of 2006, the Bush Administration and Congress painstakingly set thresholds for who can be detained and under what rules. Mr. Obama argues that work was flawed and that the trials should not continue in their present form. But he also said in his ABC sitdown that he wants to create "a process that adheres to rule of law, habeas corpus, basic principles of Anglo-American legal system, but doing it in a way that doesn't result in releasing people who are intent on blowing us up."

Sounds great. But this "balance" is difficult to strike because many of the Guantanamo prisoners haven't committed crimes per se but are dedicated American enemies and too dangerous to let go. Other cases involve evidence that is insufficient for trial but still sufficient to determine that release is an unacceptable security risk.

The stock anti-antiterror position is that detainees should be charged with crimes, either through military courts-martial or (preferably) the ordinary criminal justice system. Anyone who can't be indicted should be set free. But such trials are unworkable even for the 70 or 80 detainees that prosecutors had planned to try with military commissions, let alone prisoners who are too dangerous to release but for which there isn't sufficient evidence for a tribunal, much less civilian courts. Critics like to point to aggressive interrogations as somehow tainting these cases, but the real problems are far more prosaic. For instance, any evidence probably can't be admitted in civilian courts because terrorists aren't read their Miranda rights when picked up in combat zones.

An alternative to military commissions that is gaining political traction is the idea of a national security court, composed of Article III judges to supervise detentions and administer trials. There are real risks here. Politically, it will cost time and capital that Mr. Obama probably prefers to spend elsewhere. Practically, any new system is likely to face the same legal challenges from the white-shoe lawyers at Shearman and Sterling and anti-antiterror activists that for years tied down military commissions.

But legal experts across the political spectrum including Harvard's Jack Goldsmith, the Brookings Institution's Ben Wittes and Georgetown's Neal Katyal advance this option as a way to restore "credibility" to the detainee process. The national security court would operate under rules of evidence and classification that would allow the military to avoid compromising intelligence sources and methods, as well as admit intelligence gathered under battlefield conditions.

Then again, such rules would be almost identical to those now used in . . . George Bush's military commissions. On wiretaps, interrogations and now Gitmo, the new Administration is discovering that the left-wing attack lines against Bush policies are mostly simplistic illusions. Now those critics are Mr. Obama's problem

Freed Gitmo terrorist now network leaderposted at 9:05 am on January 23, 2009 by Ed Morrissey

Yesterday, Barack Obama signed an order pledging to close the detention center at Guantanamo Bay within in a year, but without offering a solution for the current detainees. That little detail takes on a little more significance after today’s report in the New York Times about the career of a released Gitmo inmate. After getting sprung from Gitmo, Said al-Shihri became a leader of the al-Qaeda network in Yemen:

The emergence of a former Guantánamo Bay detainee as the deputy leader of Al Qaeda’s Yemeni branch has underscored the potential complications in carrying out the executive order President Obama signed Thursday that the detention center be shut down within a year.

The militant, Said Ali al-Shihri, is suspected of involvement in a deadly bombing of the United States Embassy in Yemen’s capital, Sana, in September. He was released to Saudi Arabia in 2007 and passed through a Saudi rehabilitation program for former jihadists before resurfacing with Al Qaeda in Yemen.

His status was announced in an Internet statement by the militant group and was confirmed by an American counterterrorism official.

“They’re one and the same guy,” said the official, who insisted on anonymity because he was discussing an intelligence analysis. “He returned to Saudi Arabia in 2007, but his movements to Yemen remain unclear.”

The war on terror is no game. These people intend to kill us in large numbers, and unless we take that seriously, they will succeed. It’s not the same as using the exclusionary rule to return a burglar to the streets rather than offend tender sensibilities because someone filled out a warrant incorrectly. Al-Qaeda is not the Gambino crime family, and a law-enforcement approach will not defeat them — as the entire decade of the 1990s proved.

How did Shirhi get released? He told the Gitmo tribunals that he only traveled to Iran and Afghanistan to get carpets for his family’s store. The Pentagon’s dossier on Abu Sayyaf showed that he trained at a terrorist camp outside of Kabul, went to Iran to bring extremists into Afghanistan, and wanted to assassinate a writer on which a mullah had placed a fatwa for his writings. Shihri was fortunate that his review came at a time when the Bush administration was getting enormous pressure to reduce the number of inmates at Gitmo, and Shihri went into the Saudi rehab program. A year later, Shihri disappeared — and now he’s running the AQ network in Yemen.

Half of the remaining detainees come from Yemen, and would have to be returned to Yemen. The Yemenis have allowed terrorist suspects to break out of prison or have set them free on their own recognizance repeatedly. The Yemen branch of AQ has grown, and the addition of more than a hundred Gitmo detainees will only assist in that process.

A comprehensive, well annotated treatment of issues associated with the detainment of non-state combatants.

January 23, 2009Holding Terrorists Accountable: A Lawful Detainment Framework for the Long Warby Charles StimsonLegal Memorandum #35During the recent presidential campaign, then-Senator Barack Obama promised to close the Guan tanamo Bay detention center and stated that some Guantanamo detainees should be prosecuted or transferred to other countries and that others should be detained "in a manner consistent with the laws of war."[1] President Obama already, on his second full day in office, has taken the first steps in that direc tion by issuing an executive order calling for the clo sure of Guantanamo "as soon as practicable" and the prosecution, release, transfer, or continued detention of all detainees housed there following review of their statuses.[2]

This action is bold, comprehensive, yet cautious. In some respects, it represents a continuation, and at most an acceleration, of many of the policies of the Bush Administration. Prior to January 20, some detainees were being prosecuted,[3] and others were transferred to other countries: In fact, that latter group comprises nearly two-thirds of all those who have been held at Guantanamo.[4]

More important is what has not yet been addressed. While the Obama executive orders allude to continued detention of some Guantanamo detain ees, they address only the current detainees at Guan tanamo. President Obama's bigger decision--one where he is more likely to modify previous practice-- concerns future detainees, not the fate of those already captured and held at Guantanamo Bay.

The Obama Administration will not be ending the practice of military detention. Military detention[5] of some detainees is appropriate, consistent with long historical practice, and a necessary and lawful tool in the current conflict.[6] True, as General David Petraeus and Secretary of Defense Robert Gates have essentially said, we cannot kill or capture our way to victory in this conflict.[7] Yet military deten tion, properly calibrated and designed to comple ment our broader national security and counterterrorism policy, is necessary, not only for some detainees currently detained at Guantanamo but also for future captures of high-value detainees.

Indeed, candidate Obama also pledged to con tinue to build U.S. capacity and international part nerships to track down, capture, or kill terrorists around the world, and this presumably entails holding additional detainees.[8] That promise should assure the American people that President Obama intends to protect us from those terrorists who seek to kill us. But it also begs several key questions:

When the U.S. captures a high-value terrorist and, for whatever reason, cannot prosecute him, where will he be detained?Under what legal framework will he be detained?How will all this work given the shifting legal landscape since 9/11?Answering those questions and crafting an acceptable legal framework that ensures the contin ued safety of the American people is the difficult but necessary work ahead, and it is the substance of what the Obama Administration will have to confront as it forges a new durable policy and legal framework on detainees in the war on terrorism.

Defining the Issue

Winding down the detention operation at Guan tanamo Bay in a responsible manner will be diffi cult, will take more than just a couple of months, and requires making difficult decisions and trade-offs.[9] Indeed, President-elect Obama acknowl edged that ending the detention mission at Guan tanamo Bay will be difficult and, more significantly, that he would consider it a failure if he did not close Guantanamo by the end of his first term.[10] It is a challenge because the process actually has less to do with Guantanamo Bay detainees than with the question of how we wage war in the modern era against non-state actors who are actively waging war against us.

Guantanamo Bay is just a place--a place that admittedly has harmed our country's reputation and whose benefits arguably have come to be out weighed by its costs. To be sure, the United States has gained valuable intelligence from some detain ees at Guantanamo over the years and has kept those very same detainees from killing or injuring our soldiers or allies in our ongoing conflict. That intelligence has helped us to understand and fight this enemy more effectively, but its value has diminished over time. More important, that intelli gence and security has strained diplomatic rela tions, undermined the moral authority of the United States in the eyes of some, and raised dis tracting domestic legal obstacles.

Simply ending the detention operations at Guan tanamo addresses only one visible aspect of a broader post-9/11 detention legal framework for the incapacitation and lawful interrogation of ter rorists. Closing Guantanamo or merely moving the detainees to the United States without addressing the serious underlying challenges and questions regarding detention policy in this ongoing conflict is essentially changing the ZIP code without con­fronting the broader challenges.

The new Administration has the opportunity, and an obligation, to build on the strategic ratio nale, legal and policy underpinnings, and entire framework regarding how to hold accountable and incapacitate terrorists.[11]

It is important to recall that a key recommenda tion from the 9/11 Commission Report was for the United States to engage our allies and develop a common approach to the detention and humane treatment of captured terrorists, drawing from Common Article 3 of the Geneva Conventions.[12] Much work has been done with respect to this key recommendation;[13] some remains.

Military detention of the enemy during armed conflict is authorized and legal. According to a legal adviser for the International Committee of the Red Cross (ICRC), such detention is an "exceptional measure of control that may be ordered for security reasons in armed conflict or for the purpose of protecting State security or public order in non-conflict situations, provided the requisite criteria have been met."[14] According to the author, "the exceptional nature of intern ment lies in the fact that it allows the detaining authority to deprive liberty of persons who are not subject to criminal processes but nevertheless represent a real threat to security in the present or in the future."[15]

It is also just common sense. When our military enters armed conflict, however that is defined, it has the legal authority to use lethal force when nec essary. It stands to reason that the military must also be able to detain the enemy in a lawful man ner, all the while upholding the rule of law, protect ing human rights, and adhering to applicable provisions of the Geneva Conventions.[16]

Military detention is not a right-wing proposi tion; it is a time-honored, legal, proper national security tool during armed conflict. That fact is recognized across the political spectrum. On Janu ary 6, 2009, Senator Dianne Feinstein (D-CA), along with Senators John D. Rockefeller IV (D-WV), Ron Wyden (D-OR), and Sheldon Whitehouse (D-RI), introduced Senate Bill 147, the Lawful Interrogation and Detention Act. The act, directed specifically at the detainees currently at Guantan amo Bay, Cuba, specifically authorizes military detention for some detainees who cannot be pros ecuted or transferred.[17]

Thus, despite what some have argued over the years, the United States is not required, by its inter national obligations or otherwise, to "try them or set them free." This false choice is dangerous, and it comes with real consequences. It is widely known that some detainees released from detention in Iraq, Afghanistan, and Guantanamo have taken up arms against Americans and our allies and no doubt have committed further combatant activ ity.[18] This risk of further combatant activity will always exist, and it is particularly acute in the cur rent conflict.

Reducing that risk through lawful detainment is not always a controversial proposition. For years, the United States has captured, detained, and law fully interrogated thousands of combatants within the political boundaries of Iraq and Afghanistan, and it will continue to do so for some time in Afghanistan.[19] Most detainees are detained to pre vent further combatant activity against the U.S. or our forces--not tried in a criminal trial.

Beyond Guantanamo

With respect to terrorists captured in the future outside of Afghanistan, including by our allies or in a future conflict or other crisis, the detainment sit uation is more complicated. Neither the criminal law nor the law of armed conflict provides compre hensive and complete policy prescriptions in terms of how best to keep these combatants off of the bat tlefield and lawfully interrogate them while upholding the rule of law, protecting human rights, and safeguarding our country.

Prior to September 11, 2001, terrorism was treated as a matter of criminal law. The limits of and flaws in that approach have been detailed in numerous articles.[20] It is true that our anti-terrorism statutes have improved over the years and that our track record of trying terrorism in the courts is impres sive, but despite the system's strength and flexibil ity, these improvements will carry us only so far.[21]

A recent report by Human Rights First, In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, details over 100 terrorism cases successfully prosecuted in federal court since 9/11. The report covers many, but not all, of the important laws and legal and policy considerations regarding trying terrorism cases in federal district court. Yet it does not mention one case of a terrorist captured over seas on the battlefield after 9/11 and tried in the U.S. courts, nor does it seriously address the issue of the use of hearsay in federal trials for battle­field captures.

Most important, the Human Rights First report downplays the risks associated with the inadvertent disclosure of classified evidence, including valuable (and expensive) sources and methods of intelli gence gathering. In every case involving such evi dence--and this would include some cases involving terrorists captured overseas--there must be a careful, sophisticated cost-benefit analysis conducted by the highest officials in the govern ment before deciding to disclose certain evidence in courtroom proceedings. Trying some terrorists in federal court should be an option, and it is an option the Bush Administration should have used more often;[22] but it should not be the exclusive weapon in our arsenal for combating al-Qaeda and other unprivileged belligerents.

To its credit, the Human Rights First report does acknowledge that some detainees may properly be held under "the law of war for the duration of active hostilities to prevent them from returning to the field of battle, and without any effort by the government to file charges or impose punish ment."[23] In other words, military detention has a place in this conflict.[24]

For the most part, the Bush Administration and Congress, in its Authorization for the Use of Mili tary Force, recognized the terrorist attacks of 9/11 as an act of war, and the law of armed conflict was the foundation for the legal framework surround ing detention. With respect to Guantanamo, the law-of-armed-conflict paradigm was challenged within weeks of detainees arriving in January 2002, and its limitations have become clearer during this long conflict.

Certainly, the law of armed conflict should and will provide the underpinnings for the detention framework in Afghanistan in the years to come, but it does not provide adequate answers to or proce dural protections for detainees captured outside of Afghanistan and all of the issues that arise in a con flict of this nature.[25]

A legal regime can only set the boundaries of permissible policy; it is not a substitute for policy decisions to resolve lingering questions. In the future, when we capture a high-value al-Qaeda operative somewhere outside of Afghanistan who plots acts of terrorism or trains fellow terrorists but has not committed a domestic crime that can be prosecuted in federal district court, a court-martial, or even a new national security court, do we release him? If not, should we detain him, and under what legal framework? Where will he be detained? It is highly unlikely that the government of Afghanistan (or any other country) will allow him to be detained inside their country. Should we bring him to the United States? If so, what is his legal status, and what framework is he held under?

Further, in many of these cases, we will want to lawfully interrogate a captured operative to gain tactical or strategic intelligence. How do those law ful interrogations for intelligence reasons affect the potential for criminal prosecution? We may not be able to prosecute some of these individuals, and it may not be in our best interest as a country to try them because to do so might unreasonably risk exposing critical national security secrets.

A Future Framework

The answer, far beyond closing Guantanamo, is to solve the broader challenge of holding account able and incapacitating terrorists in a detention framework that is lawful, durable, and internation ally acceptable. As we capture future high-value terrorists outside of Afghanistan and conclude that some may not be prosecuted in our domestic courts, we will need a sustainable legal framework to detain them.[26]

Creating the right framework will be challeng ing, but it is necessary. As a former Administration official in charge of detainee matters observed, detention carries risks to both liberty and secu rity.[27] Much thought needs to be given to the char acteristics of persons subject to detention.[28] Conceptual criteria such as (among others) danger ousness, active or direct participation, membership in or support for an organization such as al-Qaeda, past acts, and future intentions must all be consid ered and weighed before drafting an appropriate definition of who may be detained.[29] However, we must remain ever mindful that our service mem bers are facing the enemy on numerous battlefields every day: These questions are not, and should not be treated as, merely academic.

As for procedural protections for future captures, under the law of armed conflict, if there is a ques tion as to a detainee's legal status (e.g., a prisoner of war, a civilian, or some other class), the detaining authority must hold a hearing, similar to an Article 5 hearing provided to prisoners of war under the Geneva Conventions, at or near the time of capture. If the "Article 5" hearing officer finds the terrorist detainable, then he may be detained. Alternatively, the hearing officer could make a finding that the captured person does not meet the proper criteria and order him released after the hearing.

If the person is deemed detainable by the hear ing officer, after a defined period of lawful interro gation, the detainee should be given an Article 5- style "competent tribunal" hearing before a military judge where he should have assistance of military counsel.[30] If the military judge, after a full and fair hearing, decides that the detainee qualifies for fur ther military detention, the detainee is thereafter detained pending periodic review.

There should be robust judicial appellate review, and the detainee should be afforded qualified free appellate counsel. The basis for his detention should be reviewed periodically.

Furthermore, military detention should be used only for those detainees who cannot be safely pros ecuted.[31] This means, at the front end of the deten tion matrix, that there must be a robust system in place to determine which cases are prosecutable and which ones are not.

As a legal matter, there is support for the argu ment that the current Authorization for Use of Mil itary Force (AUMF) authorizes the President to detain militarily a person captured in the United States.[32] However, as a policy matter, the proposed military detention framework should not apply to anyone captured in the United States, at least under current circumstances.[33]

Not even the Geneva Conventions or the princi ples underlying them answer every question. Once you give future captures an "Article 5" hearing and a "competent tribunal" determines that the detainee may be detained, then what? Does the case get transferred automatically to a federal dis trict court judge for "independent review," perhaps under a newly created national security court? And how long do you detain the individual? How often do you review the basis of his detention? According to the Geneva Conventions, a person subject to detention must have the basis for his detention reviewed periodically, but is that an appropriate standard in this case? I believe it is warranted.

Would this system even be workable if, for example, the United States captured hundreds of detainees at a time? And what impact will these robust new rules and procedures have in the next war against a state actor who will receive fewer safeguards or rights as a prisoner of war?

All of this must be done as transparently as possible.

Finally, the United States must continue to allow the International Committee of the Red Cross[34] to perform its valuable function vis-à-vis detainees, and we must continue to work with and engage the ICRC in a substantive, confidential diplomatic dialogue.

Conclusion

Shuttering detention operations at Guantanamo Bay will be only a symbolic gesture--or perhaps not even that--if the Obama Administration does not also address the broader challenge of lawfully incapacitating terrorists who are intent on waging war against us. The incoming Administration has the duty to think through the strategic rationale of military detention in the broader context of its counterterrorism policies.

Some detainees may be appropriate candidates for criminal prosecution in federal district court, in terrorists' court-martials, or even in a newly created national security court--as long as there is not an unreasonable risk of exposure of critical national security information. Other detainees at Guantan amo Bay and those captured in the future will be appropriate candidates for military detention.

Achieving this new policy will take time. It will require the new Administration to use this "strate gic pause" in military commissions, habeas corpus cases, and other ongoing matters to take stock of the best way forward.

We will see how Barack Obama responds to calls from some of his supporters to "try them or set them free." Will he make the case for a thoughtful military detainment policy, or will he give in to their dangerous demand? If Obama acknowledges that al-Qaeda members and others similarly situ ated are not common criminals and that military detention is a lawful and necessary tool in this ongoing conflict, we will know that our new Presi dent is serious about the threats aligned against us.

Charles D. "Cully" Stimson is Senior Legal Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation. He also has served as Deputy Assistant Secretary of Defense for Detainee Affairs (2006-2007) and is a Commander in the United States Navy JAG Corps, reserve component.

WASHINGTON (AFP) – President Barack Obama "declared an end" to his predecessor's "war on terror" and began to heal the US reputation abroad when he ordered the Guantanamo Bay prison to close, US editorialists wrote Friday.Obama's order to close the detention facility within a year, end coercive interrogations and shut secret overseas CIA prisons sent a strong signal to the world and presented a new post-September 11 era, wrote The Washington Post."President Obama yesterday eliminated the most controversial tools employed by his predecessor against terrorism suspects," the Post said."With the stroke of his pen, he effectively declared an end to the 'war on terror,' as President George W. Bush had defined it, signaling to the world that the reach of the US government in battling its enemies will not be limitless," it said."In a broad swipe at the Bush administration's lawyers, Obama nullified every legal order and opinion on interrogations issued by any lawyer in the executive branch after September 11, 2001," the Post added."It was a swift and sudden end to an era that was slowly drawing to a close anyway, as public sentiment grew against perceived abuses of government power."The Los Angeles Times pointed out the ambiguities that remain: it was still not clear what would be done about the 245 prisoners languishing in the jail, nor how their court cases would be resolved.But the paper hailed Obama for having reversed Bush policies."President Obama has begun the rehabilitation of this country's reputation when it comes to the treatment of suspected terrorists," the Times wrote."Obama deserves credit for ending the worst of the Bush administration's excesses in the 'war on terror' ... But the orders contain ambiguities that demonstrate how hard it will be to unwind the tangle that President Bush created."The Chicago Tribune mulled the possibility of holding the remaining Guantanamo terror suspects "as prisoners of war for the duration of the conflict or until they no longer pose a threat."The fight against violent extremism remains fraught with difficulty, it noted."Assuring fairness and civilized conditions for the accused, while protecting the nation from bloodthirsty enemies, is harder in this war than in most," the Tribune wrote."But the new administration can do better than the last one did."

A good friend writes:[A]s nearly 100 of the remaining detainees are Yemenis, reflecting that country’s refusal to assure security for repatriated Yemenis, note that AG nominee Eric Holder is a senior partner with Covington & Burling, a prestigious Washington, D.C. law firm, which represents 17 Yemenis currently held at Gitmo. From the C & B website:

The firm represents 17 Yemeni nationals and one Pakistani citizen held at Guantánamo Bay. The Supreme Court will soon review the D.C. Circuit’s ruling that ordered the dismissal of a number of habeas petitions filed by Guantánamo detainees; some of our clients are petitioners in the Supreme Court case. We expect to play a substantial role in the briefing. We also plan to petition the Supreme Court to hear our Pakistani client’s appeal from the D.C. Circuit’s order dismissing his case. Further, we are pursuing relief in the D.C. Circuit under the Detainee Treatment Act of 2005 for all of our clients. On a separate front, we filed amicus briefs and coordinated the amicus effort in Hamdan v. Rumsfeld in which the Supreme Court in the summer of 2006 invalidated President Bush’s military commissions and in which we have obtained favorable rulings that our clients have rights under the Fifth Amendment and the Geneva Conventions.

Covington & Burling’s Gitmo bar roster has included some of the most radical detainee advocates; see David Remes, who peeled down to his underwear at a press conference in Yemen to draw attention to his clients’ plight and Marc Falkoff, who published a book of detainee poetry and who, in the book’s intro, compared their heroic struggle to the Jews held in concentration camps and Japanese Americans held in internment camps during WWII. [One of Falkoff's "gentle, thoughtful" young poets--a Kuwaiti "cleared for release" and repatriated in 2005--blew himself up in a truck bomb in Mosul last March, killing 13 Iraqi army soldiers and wounding 42 others.]The fact that Mr. Holder, while Deputy Attorney General, pushed for the release of 16 violent FALN terrorists against the advice of the FBI, the US Attorneys who prosecuted them and the NYPD officers who were maimed by them, suggests that he was perfectly willing to put politics before the national security interests of the country. He is not suited for the job of attorney general, which is central to the issues surrounding the disposition of war on terror detainees.

By DAVID B. RIVKIN JR. and LEE A. CASEYThis week, President Barack Obama signed an executive order to close the terrorist detention facilities at Guantanamo Bay within the year. It was a symbolic repudiation of the Bush administration's policies, but Gitmo is not the crucial issue. The real question is whether Mr. Obama will uphold the legal architecture necessary to continue the war against al Qaeda and its jihadist allies.

What Mr. Obama's national security team will quickly discover is that the civilian criminal-justice system is an inadequate tool to deal with terrorists. President Bush's policies -- particularly treating captured terrorists as unlawful enemy combatants and employing a military court system to try them -- were dictated by the very real need to defend American citizens, not by disdain for the rule of law.

The Bush administration chose the law-of-war paradigm because the international law of armed conflict gives the U.S. maximum flexibility to meet the jihadist threat, including the right to attack and destroy al Qaeda bases and fighters in foreign countries. The alternative legal framework, the civilian criminal-justice system, is unsuitable for several key reasons. Civilian criminal suspects quite obviously cannot be targeted for military attack. They can be subjected only to the minimum force necessary to effect an arrest. They cannot -- consistent with international law -- be pursued across national boundaries. And finally, they are entitled to a speedy trial in a public courtroom. These rules cannot be ignored or altered without constitutional amendment.

In addition, the type and quality of evidence necessary for convictions in civilian courts is simply unavailable for most captured terrorists. One federal district judge recently concluded that although the government's information on one detainee was sufficient for intelligence purposes -- that is, he presumably could have been targeted for deadly attack -- it was insufficient to hold him without trial.

Trying senior al Qaeda leaders for relatively minor offenses ancillary to their major war crimes (like Al Capone for tax evasion) also is not the answer. Even if convictions and punishments could be obtained in this way, the cause of justice and historic closure requires the perpetrators to be charged with their worst offenses. This view informed the Nuremberg prosecutions.

Many have advocated for the creation of a U.S.-based national security court. Such a court would certainly be subject to constitutional challenge, and likely could not handle the sheer number of detained enemy combatants. A few hundred detainees at Guantanamo is one thing, but U.S. forces have captured and processed thousands of prisoners in the war on terror, and still hold upward of a thousand al Qaeda fighters in Iraq and Afghanistan, with many more to come in the years ahead.

Some changes to the Bush policies are obviously inevitable. But what Mr. Obama must keep in mind is that the laws of war form a relatively seamless web. Different elements -- military detention and prosecution, and robust rules of engagement driven by combat necessities -- reinforce each other. So while he may grant detainees additional due process rights (the courts have already established a right to habeas corpus proceedings for those at Guantanamo), he must continue a system of military detention for most of the captured fighters.

That's because the law of war requires that enemies be "granted quarter" -- meaning prisoners must be taken if they surrender. But if these prisoners cannot be held until hostilities are concluded and must be released only to fight again, the military would be consigned to a deadly game of catch and release. Without a viable detention regime, the U.S. cannot fairly ask its soldiers to risk their lives in combat any more than we can send in troops with defective equipment.

In Today's Opinion Journal

Since routinely prosecuting captured terrorists in the civilian courts is unrealistic, some sort of military court system for the detainees must be retained, regardless of whether they are called military commissions or special courts martial. This reinvigorated military court system must be directed to begin prosecuting those captured enemy fighters that have committed war crimes against American troops or civilians. The fact that none of the individuals now held in U.S. custody in Iraq or Afghanistan has been brought to justice, even in situations where there is sufficient evidence to prosecute them, is historically unprecedented and a slap in the face of the U.S. troops fighting this war. Giving de facto immunity to war criminals is also inconsistent with international legal norms. Republicans like Sen. John McCain (R., Ariz.) and Sen. Lindsey Graham (R., S.C.), who have criticized some Bush policies, must make their voices heard here.

This system of detention and military trials must also apply here at home. We cannot limit the military legal paradigm to overseas operations. Al Qaeda has already successfully targeted American territory, and may do so again. Foreign fighters entering the U.S. to carry out attacks should not have rights superior to those on distant, more conventional battlefields. Not only does this double standard create exactly the wrong incentives for our enemies, but it is legally unsustainable. The Supreme Court has indicated a willingness to extend constitutional protections to detainees held where the United States exercises a sufficient level of control, and this ruling can easily be extended beyond Gitmo.

Finally, the new administration cannot behave as if the military justice system for detainees is shameful, like some crazy uncle in the attic. These are legitimate laws of war and should be treated as such.

Mr. Bush's opponents have denigrated this system for nearly eight years. Many of them have now assumed power, and with power comes responsibility -- especially when it comes to protecting Americans from their enemies.

Messrs. Rivkin and Casey are Washington, D.C., lawyers who served in the Justice Department under Presidents Reagan and George H.W. Bush.

The New Era of Irresponsibility By Ben JohnsonFrontPageMagazine.com | Friday, January 23, 2009

Upon hearing that President Obama plans to close Guantanamo Bay within a year, the first thought that occurred to me was: where will terrorists go for their lemon chicken? One detention center librarian has said "a few [detainees] are kind of hooked on" the Harry Potter series; will Obama at least detain them long enough to finish The Deathly Hallows? For that matter, where else will these young jihadists ever enjoy access to a several thousand-volume library? How can you keep a boy in the compound once he's seen Gitmo?

Such a flippant reaction, of course, minimizes the very real consequences of The New Era of Irresponsibility. Terrorists have had no trouble retaining their foot soldiers. "Reformed" detainee Said Ali Al-Shihri is presently the deputy leader of Al-Qaeda in Yemen. A total of 61 former detainees have returned to the battlefield, or 12 percent of the 510 released under the more stringent measures President Obama is discarding, which deemed them "innocent" and unlikely to threaten American interests if set free. That makes the following report from the Associated Press particularly chilling: "Former detainees...around the world welcomed President Barack Obama's decision to close the Guantanamo Bay detention center."

Thursday's triple-threat exective orders - closing Guantanamo Bay no later than one year from now, shuttering rendition "black sites," and binding interrogators to the Army Field Manual for high value detainees - threaten to destroy the security apparatus that has kept this nation safe for seven years. Where will the detainees be sent? What legal rights might they incur as a result? And how can we assure not a single American life is lost as a result of releasing dozens, if not hundreds, of dangerous fundamentalist warriors?

These questions are not totally lost on the Obama administration; they were simply ignored in the stampede to curry world favor. A senior White House official assessed the remaining Gitmo detainees, saying, "There's one category that we can transfer. There's one category that we can try. The third category can't be transferred, can't be tried." What will be done with these? As Press Secretary Robert Gibbs' appalling responses showed during his first press conference, he has no idea. Not to worry, Barack Obama has a solution: a government committee, likely headed by a man who believes "waterboarding is torture," which will make recommendations within six months. Typically, leaders analyze their plans ahead before acting, assess the possible consequences against the intended goals, and then decide whether they are worth pursuing. In this case, the goal of "cleaning up our image" trumped the consequences of possibly releasing the 21st and 22nd hijackers. (Ironically, Obama's actions were praised by the same Democrats who criticized President Bush for not having "a withdrawal strategy" from a war before invasion.)

On rendition, the same White House official remarked, "There are some renditions that are in fact justifiable and defensible, and there are others that have been mistakes and are not justifiable." Yet the president chose to destroy the network of permanent prisons that might be important in those "justifiable and defensible" cases.

Although Obama surrounded himself with military men for his signing photo op, those in positions of authority disagree with the spirit of his order. The Director of National Intelligence, Admiral Michael McConnell, has said, "Does the [intelligence] community need interrogation techniques beyond what's in the Army Field Manual? In my opinion we do."

Objective evidence bears him out. Lt. Gen. Randall “Mark” Schmidt testified before the Senate Armed Services Committee in 2005 that when enhanced interrogation techniques were applied to 20th hijacker Mohammed al-Qahtani, he “proved to have intimate knowledge of [terrorists’] future plans” and provided “extremely valuable intelligence.” CIA chief Michael Hayden testified last February that two of the three al-Qaeda terrorists waterboarded, Khalid Sheikh Mohammed and Abu Zubaydah, provided the agency with one-quarter of all human intelligence it had about al-Qaeda. Maybe our armed forces can safeguard our Republic with only 75 percent of the puzzle. Maybe not.

True, Obama's executive orders hold out the possibility of exceptions in virtually every one of these situations, although no one, including the president, seems to know under what circumstances those exceptions might be invoked, if ever. The potential for loopholes can be read as a sign of moderation, or a mere nod to reality. But it is easier to maintain a state of readiness than to assume the appropriate conditions can be recreated the instant they are needed. Special permission for harsh techniques may be granted or temporary rendition sites may be located, in time - but that is not good enough if interrogators are acting against a ticking time-bomb. And as the nation tragically learned before September 11th, interrogators often do not know when they are acting against a ticking time-bomb.

At the signing ceremony Thursday, Obama said, "The message that we are sending around the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism, and we are going to do so vigilantly, we are going to do so effectively, and we are going to do so in a manner that is consistent with our values and our ideals."

The actual message Obama sent is that the United States now places "world opinion" above its own well-being; that the commander-in-chief of the War on Terror is willing to grant the other side tactical advantages; that the leader of the free world acts on image without thinking out the practical consequences his actions might have for his country or his soldiers. The only silver lining is the president's hypocrisy. Thursday's signing ceremony was the triumph of style over substance, of emotional masturbation over hard-headed analysis, of the politics of guilt over the duty of self-defense. It was certainly no way to inaugurate a new era of responsibility.

Ben Johnson is Managing Editor of FrontPage Magazine and co-author, with David Horowitz, of the book Party of Defeat. He is also the author of the book 57 Varieties of Radical Causes: Teresa Heinz Kerry's Charitable Giving.

President Obama yesterday issued orders to close the controversial Guantanamo Bay military prison that houses the plotters of the Sept. 11 attacks - sparking outrage from families of World Trade Center victims.

Obama wants to shut the prison camp in Cuba within a year and require the closing of any remaining secret CIA "black site" prisons abroad. He has also banned harsh interrogation techniques, such as water boarding, that critics claim constitute torture.

"A new era of American leadership is at hand," the president said.

But families of the 9/11 fallen slammed Obama for going soft on terrorists.

"It's the wrong move. It sends a chilling message to people who are trying to fight the war on terror. These people are trying to kill us. Down the road, [Obama] may regret doing this."

Obama said he was certain the nation's security is strengthened when the United States adheres to "core standards of conduct."

"We think that it is precisely our ideals that give us the strength and the moral high ground to be able to effectively deal with the unthinking violence that we see emanating from terrorist organizations around the world," he said.

Retired FDNY Deputy Chief Jim Riches - whose firefighter son, Jimmy, died in the trade center's north tower - said he had just visited Guantanamo, and the detainees "get better medical treatment than the veterans."

Rep. Peter King of Long Island, the ranking Republican on the House Homeland Security Committee, said Obama's actions embrace a soft-on-terror agenda.

"This is madness. These are hardened terrorists who should not be detained in the US," King said. "We live in a dangerous world. Guantanamo is a necessary evil."

Both McAffrey and King said they believed waterboarding is acceptable.

"On September 10, would you have put Mohamed Atta's head under water for 20 seconds to prevent the Sept. 11 attacks?" asked King, referring to the lead 9/11 hijacker.

Obama's moves mean the suspension of military war-crime trials of terrorists - raising questions over how and where they will now be prosecuted.

The president does not know yet what to do with the 245 suspected terrorists - including admitted 9/11 mastermind Khalid Sheik Mohammed - when Gitmo closes.

Legal experts have said it may be difficult to bring the detainees to trial in civilian courts because the evidence against them was sometimes obtained through methods that could be viewed as torture.

Under Obama's order, the feds would review whether detainees could be released or transferred to another country or to a US prison.

But it's unclear how and where the defendants would be tried - in federal court, military court or a special tribunal. Obama's order suggests military or civilian courts, but does not rule out a revised wartime commission.

Marine Maj. Jeff Groharing, a prosecutor in the lead trial of Sept. 11 plotters, said he wanted trials of terror suspects to resume at Guantanamo.

"There are victims out there that still need justice to be done. I don't think it would be fair to them to not see the cases through," he said.

An official monitoring Guantanamo has accused the military of torturing one 9/11 suspect, and many others claim they've been tortured.

Military law permits coerced evidence but not torture, while federal courts bar the use of all coerced evidence.

The new president called his actions just.

"The message that we are sending the world is that the United States intends to prosecute the ongoing struggle against violence and terrorism, and we are going to do so vigilantly and we are going to do so effectively and we are going to do so in a manner that is consistent with our values and ideals," Obama said.

He did leave some wiggle room for harsher grilling techniques by calling for a review of the Army Field Manual's interrogation guidelines.

WASHINGTON (AFP) — Two men released from the US "war on terror" prison at Guantanamo Bay, Cuba have appeared in a video posted on a jihadist website, the SITE monitoring service reported.One of the two former inmates, a Saudi man identified as Abu Sufyan al-Azdi al-Shahri, or prisoner number 372, has been elevated to the senior ranks of Al-Qaeda in Yemen, a US counter-terrorism official told AFP.Three other men appear in the video, including Abu al-Hareth Muhammad al-Oufi, identified as an Al-Qaeda field commander. SITE later said he was prisoner No. 333.A Pentagon spokesman, Commander Jeffrey Gordon, on Saturday declined to confirm the SITE information."We remain concerned about ex-Guantanamo detainees who have re-affiliated with terrorist organizations after their departure," said Gordon."We will continue to work with the international community to mitigate the threat they pose," he said.On the video, al-Shihri is seen sitting with three other men before a flag of the Islamic State of Iraq, the front for Al-Qaeda in Iraq."By Allah, imprisonment only increased our persistence in our principles for which we went out, did jihad for, and were imprisoned for," al-Shihri was quoted as saying.Al-Shiri was transferred from Guantanamo to Saudi Arabia in 2007, the US counter-terrorism official said.The other men in the video are identified as Commander Abu Baseer al-Wahayshi and Abu Hureira Qasm al-Rimi (also known as Abu Hureira al-Sana'ani).The Defense Department has said as many as 61 former Guantanamo detainees -- about 11 percent of 520 detainees transferred from the detention center and released -- are believed to have returned to the fight.The latest case highlights the risk the new US administration faces as it moves to empty Guantanamo of its remaining 245 prisoners and close the controversial detention camp within a year.

Said Ali al Shihri, former Guantánamo detainee and deputy leader of al Qaeda in Yemen. Photo from The SITE Institute.

Two former Guantánamo detainees appear in a newly released al Qaeda propaganda video, according to the SITE Intelligence Group, an organization that monitors terrorist media. The former Guantánamo inmates have been identified as Said Ali al Shihri and Abu Hareth Muhammad al Awfi. Al Awfi is also known as Mohamed Atiq Awayd al Harbi, a kunya (or nickname) meaning that he is from the al Harbi tribe on the Arabian peninsula.

According to a report that first appeared in The New York Times last week, al Shihri was recently identified as the deputy of al Qaeda’s affiliate in Yemen and may have played a direct role in al Qaeda’s attack on the American embassy in Sana'a, Yemen's capital, in September of 2008. That attack killed ten civilians, along with six terrorists. Al Awfi has been identified as an al Qaeda field commander.

Both men were released from Guantánamo in November of 2007 and sent to their native Saudi Arabia, where they entered a rehabilitation program for former jihadists that is run by the Saudi government. According to The New York Times, al Awfi condemns the Saudi program and openly threatens attacks in Saudi Arabia in the video.

The former detainees make their appearance in front of the flag used by the Islamic State of Iraq, al Qaeda in Iraq’s political front, according to an account by Agence France Presse. Al Shihri claims that he and his fellow terrorists are just continuing the jihad that was the reason for their imprisonment at Guantánamo.

"By Allah, imprisonment only increased our persistence in our principles for which we went out, did jihad for, and were imprisoned for," al Shihri says.

The U.S. government’s unclassified files, which were created at Guantánamo and released to the public by the Department of Defense in response to a Freedom of Information Act (FOIA) request by the Associated Press, reveal a number of details about both al Shihri’s and al Awfi’s careers prior to their detention.

The U.S. government accused both men of working with charities that have been designated as fronts for al Qaeda, including the Saudi-based organization al Wafa. Al Wafa is responsible for shuttling al Qaeda terrorists to and from Afghanistan, and has offices throughout Iran, Pakistan and Afghanistan.

The government’s unclassified files on al Shihri note that he was an "al Qaeda travel facilitator" who would brief "others in Mashhad, Iran on entry procedures into Afghanistan utilizing a certain crossing." In fact, al Shihri is "on a watch list for facilitating travel for Saudis willing to go to Afghanistan through Iran by providing fake passports to those unable to get one."

Al Qaeda’s use of Mashhad and other points in Iran as transit points has long been known to the U.S. government. As Ken Timmerman first reported in the Washington Times, senior Bush administration officials were briefed on the Mashhad operation as early as October of 2001. And, as the 9/11 Commission noted, most of the 9/11 hijackers transited Iranian soil en route to their day of terror.

The Long War Journal reviewed thousands of unclassified files released from Guantánamo. The Mashhad-based transit line al Shihri helped run is not the only one al Qaeda operates inside Iran. More than fifty detainees who are either currently held or have been held at Guantánamo are alleged to have had some involvement with Iran. Some of them, like the Taliban’s former governor of the Herat province, were accused of illicit dealings with the Iranian government. The governor, Khirullah Said Wali Khairkhwa, even admitted to setting up at least two meetings between senior Iranian and Taliban officials. At these meetings, Iran and the Taliban, who were one-time enemies, agreed to work together to counter American influence in South and Central Asia.

Dozens of the detainees analyzed by The Long War Journal used al Qaeda’s transit nodes in the Iranian cities of Tayyebat, Zahedan, and Mashhad – all three cities are on Iran’s easternmost border with Afghanistan. Iran’s capital, Tehran, was also identified in the unclassified files as a common transit hub.

These transit hubs were operated by Saudi-based charities that, in reality, acted as fronts for al Qaeda and the Taliban. One of these charities is al Wafa, which has been designated under Executive Order 13224 as a terrorist organization and is briefly mentioned in 9/11 Commission’s report as an al Qaeda front.

Prior to his release, al Shihri was accused of dealing with al Wafa. He had contacts with senior al Wafa officials and one of his aliases and his phone number were "found in the pocket litter of the Karachi, Pakistan manager of" al Wafa. More than 100 Saudis have been repatriated from Guantánamo to Saudi Arabia. In addition to al Shihri, dozens of others are alleged to have worked with al Wafa. Some of them helped run al Wafa’s operations inside Iran and Afghanistan as well. For example, former Guantánamo detainee Abdul Aziz al Matrafi, is alleged to have worked with the Taliban and al Qaeda at the highest levels while running al Wafa's operations. At Guantánamo, al Matrafi was accused of personally working with both Mullah Omar and Osama bin Laden.

Abu Hareth Muhammad al Awfi. Photo from The Site Institute.

Abu Hareth Muhammad al Awfi is also alleged to have worked with al Wafa. The government alleges that al Awfi was a member of both al Wafa and Jammat al Tablighi, a Pakistani-based Islamic organization that does charity work but also serves as a cover for al Qaeda members traveling around the globe. The government explains al Wafa and al Awfi’s role in the organization thusly:

“Al Wafa claimed to be a charitable organization, but it was common knowledge that al Wafa delivered weapons and supplies to Afghanistan fighters in Tora Bora. Al Wafa provided money of all currencies, including United States Dollars, to those fighters who needed it. [Al Awfi] was identified as one of approximately 400 Arabs who claimed to be members of a subset of al Wafa called Irata. However, these were actually Mujahedin fighters in Afghanistan.”The government believes that al Awfi was in Tora Bora with other al Qaeda and Taliban members who fled the American-led invasion of Afghanistan in late 2001.

During his combatant status review tribunal at Guantánamo, al Awfi admitted that he associated with Jamaat al Tablighi, but denied all of the government’s other claims. The government alleged that his name (listed as Mohamed Atiq Awayd al Harbi) was found on a list recovered from one of Osama bin Laden’s residences in Kabul, Afghanistan in December of 2001. Al Awfi claimed that his name is a common one and it must have been another Saudi.

The government made a number of other allegations against al Awfi, including that he was trained in Chechnya along with other jihadists and that he also received training at al Qaeda’s al Farouq camp in Afghanistan. Al Awfi was also recognized by an unnamed “senior al Qaeda operative” as having stayed in an al Qaeda guesthouse in Afghanistan in the late 1990’s.

Al Awfi was captured in Pakistan in late 2001 with a large amount of money, including thousands of American Dollars and Saudi Riyals.

During his time at Guantánamo, al Awfi claimed he loved Americans and was even willing to work with the American government once he returned to Saudi Arabia. Given his appearance in a new al Qaeda video, he was clearly more willing to work with al Qaeda, as is his fellow former detainee.

A 9/11 family member chides the new President for closing Guantanamo terror campBy Michael BurkeSunday, January 25th 2009, 4:00 AM

With his shameful order to close Guantanamo Bay, President Obama has perfectly filled the stereotype of the classic clueless ultra-Liberal - the one who can generate great passion for the rights of the guilty defendant and none for the innocent victim.With a single stroke of the pen, Obama has delayed justice for the victims of 9/11, and in essence granted a reprieve for Al Qaeda mastermind Khalid Shaikh Mohammed, the architect of 9/11.America does not honor our "rule of law and the rights of man" as he put in his inauguration speech by such an action. Instead, this nation abdicated its duty to justice.It seems the new President is too far removed from the victims of 9/11. Victims like 11-year-old Bernard Curtis Brown, a passenger on American Airlines Flight 77, which crashed into the Pentagon. Everyone onboard was killed, as well as 66 people in the Pentagon. Curtis was on a trip with several of his classmates to California sponsored by National Geographic.Obama and the Democrats have had a blind spot for 9/11 and have yet to show they have an ounce of understanding what happened that day.Here is why we were attacked: Muslim extremists hate Americans and want us dead. Our policies in no way influenced the vitriol perpetuated on innocent Americans on Sept. 11, 2001.It is asinine to believe that Guantanamo Bay, even with its scandalously biased coverage, has in any way inspired a single terrorist.Khalid Shaikh Mohammed, who has offered unapologetic confessions for 9/11 and also brags that he was the assassin of journalist Daniel Pearl ("with this blessed right hand I beheaded the Jew") sits in an air-conditioned cell, innocent until proven guilty, receiving three square meals a day, specially prepared to satisfy his religious prescriptions, free medical and dental (already meeting Obama's specifications of health care as a constitutional right) and the free services of an army of court-appointed lawyers.Welcome to the American way of life.Obama could grant these men full constitutional rights in an American court. And when they are exonerated, we, the U.S. taxpayers, supply a luxury cruise ship trip back home. And they will still hate us and want us dead.The only thing Obama has accomplished is convincing these mass murderers that we are too narcissistic, too foolish and too weak to protect and defend ourselves. Just as the terrorists believed prior to 9/11.And we do not enhance our Constitution by applying it to those it was never meant to serve. Rather, the move diminishes and threatens the foundation on which our laws are built.It is impossible to fight the war on terrorism, like every war, under the Constitution. Consequently, we cannot convict our enemies under it. They will get off. Once free, they will, despite having enjoyed the benevolence of our constitutional rights, strike us again. The Constitution then becomes a means of our destruction. If it cannot protect us, then what is to stop somebody from trying to replace it? Obama would lead us down the road to dictatorship.The attacks of Sept. 11, 2001, were unprecedented. Everything we did in response was made up along the way. Despite that, and contrary to the echo chamber of criticism, America has managed, by pummeling Al Qaeda and liberating the peoples of two nations, to make the world a freer and safer place. We have successfully defended ourselves against any further attacks. And we have done it with a proper respect for the "rule of law and the rights of man."Justice delayed is justice denied. That goes for the American victims of foreign attacks, also.With this order to close Guantanamo, the countdown to the next attack has begun.

Burke is the brother of FDNY Capt. William F. Burke Jr., who was killed on Sept. 11, 2001.

"By Allah, imprisonment only increased our persistence in our principles for which we went out, did jihad for, and were imprisoned for."

These are the words loudly uttered by an al-Qaeda cadre who was detained in GITMO for a number of years and released in 2007 back to the region. This statement comes at a time the detention center has been ordered to be shut down within a year. This episode provides evidence that Jihadism as an ideology does not respond to the political culture of democracy nor are the indoctrinated Jihadists impacted by the moral and legal debate within what they see as the sphere of the infidels. The Guantanamo legal and ethical drama will continue to be discussed in the United Sates and the West, but for now let's look at the outpouring harsh facts.

As reported by the SITE web site, two men released from the prison at Guantanamo Bay, Cuba have appeared in a video posted on a Jihadi site. The most notorious of the two, a Saudi man identified as Abu Sufyan al-Azdi al-Shahri, or prisoner number 372, has been "elevated to the senior ranks of al-Qaeda in Yemen," a US counter-terrorism official told AFP. The other man on the video is Abu al-Hareth Muhammad al-Oufi, identified as an al-Qaeda commander. SITE stated he was prisoner Number 333. Reviewing the video provided by the Laura Mansfield monitoring group http://www.lauramansfield.com/mnhona.rm, I analyzed the statements made by al-Shahri and al-Oufi in original Arabic.

On the video, as reported accurately by all sites and news agencies, al-Shihri is seen sitting with three other men under a flag of the "Islamic State of Iraq," Al-Qaeda's regional command in Mesopotamia. The other two Jihadists in the video were identified as Abu Baseer al-Wahayshi and Abu Hureira Qasm al-Rimi (aka Abu Hureira al-Sana'ani). Al-Shiri was transferred from Guantanamo to Saudi Arabia in 2007, a US counter-terrorism official told AFP. A US source confirmed to AP that Said Ali al-Shihri, "who was jailed at Guantanamo for six years after his capture in Pakistan, has resurfaced as a leader of a Yemeni branch of al-Qaida." Al-Shihri was released by the US in 2007 to the Saudi government for "rehabilitation." But this week a statement posted on the site declared he is now the top deputy in "al-Qaida in the Arabian Peninsula," the regional command for Bin Laden's organization operating from Yemen with cells across the peninsula. The terror group has been responsible for attacks on the US Embassy in Yemen's capital Sana.

Per US documents obtained by AP, "al-Shihri was stopped at a Pakistani border crossing in December 2001 with injuries from an airstrike and recuperated at a hospital in Quetta for a month and a half. Within days of leaving the hospital, he became one of the first detainees sent to Guantanamo." According to the same sources, "Al-Shihri allegedly traveled to Afghanistan two weeks after the Sept. 11, 2001 attacks, provided money to other fighters and trained in urban warfare at a camp north of Kabul, Afghanistan." But more troubling is the fact that al-Shihri was a contact person between al-Qaeda and Iran. As reported by AP, he was "an alleged travel coordinator for al-Qaida who was accused of meeting extremists in Mashad, Iran, and briefing them on how to enter Afghanistan." Such a person operating in the most strategic area of Jihadism, the most dangerous bridge of (potential) cooperation between al-Qaeda and the Khomeinist regime, was released from Guantanamo on the basis that he said "bin Laden had no business representing Islam, denied any links to terrorism and expressed interest in rejoining his family in Saudi Arabia." When asked about his Iranian trips, he allegedly answered that he was "buying carpets for his store in Riyadh."

Is this for real? Had these facts not been cited from official US documents and had I and many colleagues not viewed the video personally, it would have been hard to believe that the Guantanamo release of Jihadists was that tragic for national security and for the future of US and allied efforts in the confrontation with Terror forces. Unfortunately, the reality of al-Qaeda's tactics regarding Guantanamo or any other detention center, judicial, administrative or military, raises unavoidable questions and brings about sobering conclusions:

1) Former inmates, in this case Abu Sufyan al-Azdi al-Shahri (Prisoner No 372) and Abu al-Hareth Muhammad al-Oufi (Prisoner No 333), are being elevated to the senior ranks of Al-Qaeda. The release of Jihadi Terrorists to their countries or other countries in the region didn't transform them into ordinary citizens but reinserted them in al-Qaeda's network. Furthermore, Salafi Jihadi chat rooms are mentioning the video and propagating the argument that those released from Guantanamo are going to be not only well received and made into heroes but will become the leaders of the Jihad (al-Qaeda and others) against the United States, the West and moderates in the region.

2) On what ground were they released? This is an important question to be raised because it would help project what will happen when the other GITMO detainees will be released. What is the measurement that US authorities have adopted to release al-Qaeda members from Guantanamo? Was it statements the Jihadists made about their forthcoming life? All al-Shahri had to do was criticize Bin Laden and pledge to return to a normal life? How did experts and psychologists guide the government in terms of concluding that indeed the Terrorists have reformed?

3) How come these released detainees to Yemen (or other countries) were able to reemerge as al-Qaeda leaders there? How come they were able to travel across the region and reorganize? What would this tell us about our "partners" in the so-called War against Terror?

4) How come US intelligence wasn't able to predict that these detainees would reinsert in al-Qaeda after being released? Or did US intelligence predict the outcome but policy makers still decided to release them?

5) Shutting down Guantanamo may be a decision based on "political, moral and strategic communications" considerations. This debate is not over apparently. But this latest video brings hard evidence that the issue isn't about a camp to be shut down but about an ideology to be countered. For according to al-Qaeda's manuals, the Jihadists are trained for when they are in detention and are prepared for all other scenarios: facing all sorts of courts, becoming martyrs or being released to perform Jihad again.

In previous articles, I underlined that al Qaeda has detention tactics and a post detention strategy. The United States must catch up with the Terror forces. It should have developed counter strategies for both stages, with or without Guantanamo. Unless proven wrong, facts show a failure in both stages. This Jihadi manipulation is a chilling reminder of the “silence of the lambs.” It is time to bridge the gap.

**************

Dr Walid Phares is the Director of the Future Terrorism Project at the Foundation for the Defense of Democracies and the author of The Confrontation: Winning the War against Future Jihad

President Obama's decision to close the detention facilities at Guantanamo Bay within a year is being hailed as a necessary step in restoring the good name and moral hygiene of America. Fundamentally, it tests the proposition that self-esteem can be a form of self-defense.

Nobody ever actually liked Guantanamo. It was a strange growth on the body of American law, made necessary by extraordinary circumstances that existing institutions were ill-prepared to handle. Even Donald Rumsfeld had reservations: In his excellent memoir, "War and Decision," former Defense Undersecretary Douglas Feith writes that his boss recoiled at turning his department into "the world's jailer."

The Opinion Journal WidgetDownload Opinion Journal's widget and link to the most important editorials and op-eds of the day from your blog or Web page.But the best case against Guantanamo was always inherently odd. It came down to the view that its benefits as a holding pen for the world's most dangerous men could not outweigh the inevitable PR disaster of removing such men to an exotic locale, a step removed from ordinary conventions of law, prone to lurid speculation about Papillon-like goings on, corroborated by the testimony of inmates trained to cry "torture" whenever incarcerated.

In other words, the smart case against Gitmo is that the stupid case against it was bound to prevail, with first-order consequences for America's image and self-image, and second-order ones for our ability to inspire, lead and be followed.

Is this true? Paradoxically, the case for Guantanamo is only becoming obvious as the clock ticks toward closure. Consider, for instance, the recent career of Said Ali al-Shihri.

UnclassifiedRead the Department of Defense's summary of evidence against Said Ali al-Shihri.According to an unclassified June 2007 document from Guantanamo's Office for the Administrative Review of the Detention of Enemy Combatants, Mr. Shihri "was identified as an al Qaeda facilitator in Mashad, Iran, for youth traveling to Afghanistan"; "wanted two individuals to assassinate a writer based on a fatwa by Sheikh Hamud bin Uqla" (a favorite of Osama bin Laden); and "trained in urban warfare at the Libyan Camp north of Kabul, Afghanistan."

Charming résumé. But what's remarkable here is that the dark lords of Gitmo justice nonetheless found sufficient exculpatory evidence to release Mr. Shihri from detention. "The detainee stated that he was just a Muslim not a terrorist"; that he "denied any involvement or knowledge of assistance provided to jihadists traveling to Pakistan or Afghanistan"; and that, upon his release, "he would attempt to work at his family's furniture store, if it is still in business" in Riyadh, Saudi Arabia.

Maybe the store had gone out of business. Last week, Mr. Shihri, who had undergone a "rehabilitation course" courtesy of the Saudi government, resurfaced as al Qaeda's deputy chief in Yemen, alongside an accomplice named Mohamed Atiq Awayd al-Harbi, a colleague of Mr. Shihri's from Guantanamo who was released the same day.

Mr. Shihri's role with al Qaeda hasn't been merely ceremonial. According to reports, he was involved in a September attempt to bomb the U.S. Embassy in the Yemeni capital of Sana'a. No Americans were killed, but 16 others died in the attack. It's a pity we don't know their names.

Yesterday, Reuters reported that the embassy had again "received a threat of a possible attack." Some such attack is probably bound to succeed in killing Americans one day, perhaps in a big way, and possibly with the fingerprints of one of the 60-odd Gitmo graduates the U.S. believes have "returned to the fight." What lessons shall we draw in that event?

In Today's Opinion Journal

REVIEW & OUTLOOK

Obama and IraqWorld Bank OmertaSpeaker Nancy Malthus

TODAY'S COLUMNISTS

Main Street: Obama Should Acknowledge His Roots – William McGurn

COMMENTARY

Animal Spirits Depend on Trust – Robert J. ShillerCorporate Tax Cuts Should Be Part of the Stimulus – Stephen J. EntinLet's Have Flexible Armed Forces – Mackubin Thomas OwensEconomic Policy Will Have to Be Very Agile – Marina v.N. WhitmanNo doubt some will conclude that the Gitmo ordeal is what turned a random collection of Peshawar holiday-makers and itinerant Saudi carpet salesmen, who made their way to the Afghan frontier on the eve of 9/11, into raging jihadists. Similar arguments were heard a generation ago in favor of deinstitutionalization, on the theory that psychiatric institutions manufacture insanity.

There will also be those who argue that the death of innocents is the price free societies pay for freedom. They will argue, too, that the price is actually a bargain, since the moral stature gained by shutting down places like Guantanamo earns us the kind of moral and political credit we need to broaden America's appeal in the Muslim world.

In his inaugural address, Mr. Obama noted that "our security emanates from the justness of our cause, the force of our example, the tempering qualities of humility and restraint." All this is obviously true.

Then again, our security also depends on doing what we can to keep the likes of Mr. Shihri -- far from the most dangerous of Gitmo's prisoners -- away from his would-be victims. To do so is neither a violation of conscience nor a blot on our national honor; it should not be a violation of the law. And a president sworn to preserve, protect and defend the Constitution should know this.

As President Obama pushes for the closure of Guantanamo Bay prison, the debate over where to house the terror detainees being held there is heating up.

An exclusive video of a former Gitmo detainee's martyrdom tape, obtained by FOX News, is a reminder of the concerns that terror suspects — who have been held but released from Guantanamo Bay — are increasingly returning to the fight against the United States and its allies.

Abdallah Ali al-Ajmi was transferred back to his home country of Kuwait after his release from Guantanamo in 2005. Last April he blew himself up in a homicide attack that killed 12 people in Mosul, Iraq.

Al-Ajmi, known in Guantanamo as Detainee 220, made his martyrdom tape before the attack.

"In the name of Allah, most compassionate, most merciful and prayers and peace be upon our Prophet," al-Ajmi says in the video. "I thank Allah, Lord of the Worlds, who freed me from Guantanamo prison and, after we were tortured, connected me with the Islamic State of Iraq [ISI]. And it is the gift of Allah to follow the path of this nation, the ISI."

In the video, translated by the NEFA Foundation, a non-profit that tracks terror groups, al-Ajmi mentions Guantanamo Bay right away. For many jihadists, having served time at Guantanamo is seen as a badge of honor.

Click here to visit the NEFA Foundation Web site.

Al-Ajmi's attack is one of the most well known and well documented cases of an ex-Gitmo detainee returning to the battlefield as a homicide bomber. His video renews concerns of many in the intelligence community of the potential consequences by releasing these prisoners.

Sixty-two detainees released from the U.S. Navy base prison in Cuba are believed to have rejoined the fight, said Pentagon spokesman Geoff Morrell, citing data from December. That's up from 37 as of March 2008, Morrell said.

The new figures come as President-elect Barack Obama issued an executive order last week to close the controversial prison. It's unlikely, however, that the Guantanamo detention facility will be closed anytime soon as Obama weighs what to do with the estimated 250 Al Qaeda, Taliban or other foreign fighter suspects still there.

FOX News' Catherine Herridge and the Associated Press contributed to this report.

Determined to keep one of his best-known campaign promises, Barack Obama is already making plans to shut down the terrorist prison at Guantanamo Bay, Cuba.

The Associated Press reports that the Obama Administration, on its first full day in office, has already began circulating a draft executive order on the detention facility. It calls for closing the prison camp within a year and in the interim, suspending military tribunals for terror suspects.

Closing the facility in Cuba “would further the national security and foreign policy interests of the United States and the interests of justice,” read the draft prepared for the president’s signature.

While some of the detainees currently held at Guantanamo would be released, others would be transferred elsewhere and later put on trial under terms to be determined.

It was not known when Obama intended to issue the order. He has been a longtime critic of the Bush administration’s decision to maintain the detention facility, which was opened after the Sept. 11, 2001, terrorist attacks.

Also unanswered are two, equally salient questions: First, what happens to those prisoners who "will be transferred elsewhere?" And secondly, how will those detainees be put on trail? (assuming that the Obama team scraps the current system of military tribunals)

With the closing of Guantanamo--and the end of military trials--it's a safe bet that remaining terrorist detainees will wind up in American prisons and the federal court system.

The most dangerous suspects may wind up at the federal SuperMax prison in Florence, Colorado. Several convicted terrorists are among the high-profile prisoners currently housed at the facility. They include the so-called "19th hijacker," Zacarias Moussaoui; shoe-bomber Richard Reid and Ramzi Yousef, a key figure in the 1993 bombing of the World Trade Center.

But there won't be any Al Qaida reunion parties at the SuperMax. Inmates spend 23 hours a day inside their cells, leaving only for an exercise period in a room that's the size of two automobiles.

Unfortunately, the SuperMax can't hold all of the terror suspects who will be leaving Guantanamo. And so far, the Bureau of Prisons hasn't explained how it plans to incarcerate the accused terrorists, before, during and after their trials. With facilities already over crowded--and gang violence on the rise--prison officials aren't exactly enthused about housing dangerous terrorists in their institutions, and keeping them away from the general population.

Then, there's the matter of actually putting the suspects on trial. The Moussaoui case illustrates the problems with prosecuting terror suspects in a federal court. Mr. Moussaoui was captured by alert FBI agents before 9/11, and he was indicted only three months after the Al Qaida attacks in New York City, Washington, D.C. and rural Pennsylvania.

It would take another four years to convict and sentence Mr. Moussaoui. During the interim, he tried to make a mockery of his trial (and the U.S. justice system), changing his plea, hiring and firing attorneys and at one point, offered a psychiatric evaluation of the trial judge, Leonie Brinkema.

Now, multiply the "Moussaoui" effect by the dozens (perhaps hundreds) of terror defendants that will soon clog our courts in eastern district of Virginia and the southern district of Manhattan, where Al Qaida operatives committed their crimes. Judges, prosecutors and defense attorneys can block off their schedules for years at a stretch, while other legal matters are pushed to the back burner. The government will also spend millions for more security. The court houses where the trials are held will become terror targets, necessitating additional measures to keep the buildings--and their employees--safe.

To address those (and other concerns) a number of legal experts have suggested the creation of National Security Courts. Those forums would be staffed by judges and lawyers with expertise in a wide range of national security matters, from intelligence gathering to the prosecution of suspected terrorists.

Presumably, the security courts would be located in facilities that are less vulnerable than federal courthouses. Most of those latter structures are poorly equipped for important terrorism trials; due to security concerns, they often become armed fortresses with restricted access, slowing the resolution of other legal matters. Located in secure facilities--and with their specialized focus--the security courts would circumvent many of the problems associated with terrorist trials in federal district courts.

But creating that special court system would take time--well over a year--and President Obama hasn't voiced support for that concept. If he sticks to his timetable for shutting down Gitmo, we can expect a flood of terrorist detainees in federal prisons later this year, and exasperating "trails" that will stretch out into the next decade.

And that prospect is preferable to shutting down Guantanamo, and ending the military tribunal process? As Mr. Obama receives plaudits for his plan to shutter that "terrorist prison," he's about to discover that the devil's in the details. That surge of suspected terrorists is inching closer to our prison and courts system. Then what, Mr. President?

MIAMI (Reuters) – The chief judge for the Guantanamo war crimes court on Thursday refused U.S. President Barack Obama's request to delay proceedings against a prisoner charged with plotting an attack that killed 17 U.S. sailors.

This could force the Pentagon to withdraw the charges, though they could be refiled later if the Obama administration decides to keep the special tribunals at the U.S. naval base at Guantanamo Bay, Cuba. The White House said it was consulting with the Pentagon and the Department of Justice on how to respond, said spokesman Robert Gibbs.

Hours after taking office last week, Obama ordered Guantanamo prosecutors to seek 120-day delays in all pending cases to give his administration time to decide whether to scrap the widely criticized tribunals created by the Bush administration to try suspected terrorists outside the regular U.S. court system.

But the judge, Army Colonel James Pohl, said the law underpinning the tribunals gives the presiding judges sole authority to delay cases. He ruled that postponing proceedings against Abd al Rahim al Nashiri was not reasonable and "does not serve the interest of justice."

Nashiri is charged with conspiring with al Qaeda to crash an explosives-laden boat against the side of the USS Cole in the Yemeni port of Aden in 2000. The attack killed 17 U.S. sailors and Nashiri would face execution if convicted. His arraignment was set for February 9. Pentagon spokesman Geoff Morrell said Obama's executive order freezing the trials, which are formally known as military commissions, would guide the Defense Department's actions.

"This department will be in full compliance with the president's executive order. There's no ifs, ands or buts about that," Morrell told reporters. "While that executive order is in force and effect, trust me that there will be no proceedings continuing down at Gitmo (Guantanamo Bay) with military commissions."

The military judge, however, noted that Obama directed in his order that it "shall be implemented consistent with applicable law" and the 2006 law authorizing the trials was still applicable.

Military prosecutors and defense lawyers both supported delaying the case, arguing that Obama's pending decision on what to do with Guantanamo could render the proceedings moot. Obama has ordered the prison closed by this time next year.Morrell said it appeared to be up to Susan Crawford, the Pentagon appointee overseeing the Guantanamo trials, to resolve the matter. She could withdraw the charges without prejudice, allowing them to be refiled again later.Charges are pending against 21 Guantanamo prisoners, though Crawford has only referred 14 cases to trial. Judges have issued orders freezing the proceedings in six of those.

Reporting from Washington — The CIA's secret prisons are being shuttered. Harsh interrogation techniques are off-limits. And Guantanamo Bay will eventually go back to being a wind-swept naval base on the southeastern corner of Cuba.

But even while dismantling these programs, President Obama left intact an equally controversial counter-terrorism tool.

Under executive orders issued by Obama recently, the CIA still has authority to carry out what are known as renditions, secret abductions and transfers of prisoners to countries that cooperate with the United States.

Current and former U.S. intelligence officials said that the rendition program might be poised to play an expanded role going forward because it was the main remaining mechanism -- aside from Predator missile strikes -- for taking suspected terrorists off the street.

The rendition program became a source of embarrassment for the CIA, and a target of international scorn, as details emerged in recent years of botched captures, mistaken identities and allegations that prisoners were turned over to countries where they were tortured.

The European Parliament condemned renditions as "an illegal instrument used by the United States." Prisoners swept up in the program have sued the CIA as well as a Boeing Co. subsidiary accused of working with the agency on dozens of rendition flights.

But the Obama administration appears to have determined that the rendition program was one component of the Bush administration's war on terrorism that it could not afford to discard.

The decision underscores the fact that the battle with Al Qaeda and other terrorist groups is far from over and that even if the United States is shutting down the prisons, it is not done taking prisoners.

"Obviously you need to preserve some tools -- you still have to go after the bad guys," said an Obama administration official, speaking on condition of anonymity when discussing the legal reasoning. "The legal advisors working on this looked at rendition. It is controversial in some circles and kicked up a big storm in Europe. But if done within certain parameters, it is an acceptable practice."

One provision in one of Obama’s orders appears to preserve the CIA's ability to detain and interrogate terrorism suspects as long as they are not held long-term. The little-noticed provision states that the instructions to close the CIA's secret prison sites "do not refer to facilities used only to hold people on a short-term, transitory basis."

Despite concern about rendition, Obama's prohibition of many other counter-terrorism tools could prompt intelligence officers to resort more frequently to the "transitory" technique.

The decision to preserve the program did not draw major protests, even among human rights groups. Leaders of such organizations attribute that to a sense that nations need certain tools to combat terrorism.

"Under limited circumstances, there is a legitimate place" for renditions, said Tom Malinowski, the Washington advocacy director for Human Rights Watch. "What I heard loud and clear from the president's order was that they want to design a system that doesn't result in people being sent to foreign dungeons to be tortured -- but that designing that system is going to take some time."

Malinowski said he had urged the Obama administration to stipulate that prisoners could be transferred only to countries where they would be guaranteed a public hearing in an official court. "Producing a prisoner before a real court is a key safeguard against torture, abuse and disappearance," Malinowski said.

CIA veterans involved in renditions characterized the program as important but of limited intelligence-gathering use. It is used mainly for terrorism suspects not considered valuable enough for the CIA to keep, they said.

"The reason we did interrogations [ourselves] is because renditions for the most part weren't very productive," said a former senior CIA official who spoke on condition of anonymity because of the sensitive nature of the subject.

The most valuable intelligence on Al Qaeda came from prisoners who were in CIA custody and questioned by agency experts, the official said. Once prisoners were turned over to Egypt, Jordan or elsewhere, the agency had limited influence over how much intelligence was shared, how prisoners were treated and whether they were later released.

"In some ways, [rendition] is the worst option," the former official said. "If they are in U.S. hands, you have a lot of checks and balances, medics and lawyers. Once you turn them over to another service, you lose control."

In his executive order on lawful interrogations, Obama created a task force to reexamine renditions to make sure that they "do not result in the transfer of individuals to other nations to face torture," or otherwise circumvent human rights laws and treaties.

The CIA has long maintained that it does not turn prisoners over to other countries without first obtaining assurances that the detainees will not be mistreated.

Even so, the rendition program became a target of fierce criticism during the Bush administration as a series of cases surfaced.

In one of the most notorious instances, a German citizen named Khaled Masri was arrested in Macedonia in 2003 and whisked away by the CIA to a secret prison in Afghanistan. He was quietly released in Albania five months later after the agency determined it had mistaken Masri for an associate of the Sept. 11 hijackers.

Masri later described being abducted by "seven or eight men dressed in black and wearing black ski masks." He said he was stripped of his clothes, placed in a diaper and blindfolded before being taken aboard a plane in shackles -- an account that matches other descriptions of prisoners captured in the rendition program.

In another prominent case, an Egyptian cleric known as Abu Omar was abducted in Italy in 2003 and secretly flown to an Egyptian jail, where he said he was tortured. The incident became a major source of embarrassment to the CIA when Italian authorities, using cellphone records, identified agency operatives involved in the abduction and sought to prosecute them.

Defenders of the rendition program point out that it has been an effective tool since the early 1990s and was often used to bring terrorism suspects to courts in the United States. Among them was Ramzi Ahmed Yousef, who was captured in Pakistan and was convicted of helping orchestrate the 1993 World Trade Center bombing.

Because details on the rendition program are classified, the scale of the program has been a subject of wide-ranging speculation.

An exhaustive investigation by the European Union concluded that the CIA had operated more than 1,200 flights in European airspace after the Sept. 11 attacks.

The implication was that most were rendition-related, with some taking suspects to states where they faced torture.

But U.S. intelligence officials contend that the EU report greatly exaggerated the scale of the program and that most of the flights documented by the Europeans involved moving supplies and CIA personnel, not prisoners.

Instead, recent comments by Hayden suggest that the program has been used to move no more than a handful of prisoners in recent years and that the total is in the "midrange two figures" since the Sept. 11 attacks.

CAIRO – Saudi Arabia said Wednesday that 11 men released from the U.S. prison at Guantanamo Bay are now on the kingdom's most-wanted list despite having attended its touted extremist rehabilitation program.President Barack Obama has signed an executive order closing the detention center at the naval base in Cuba, leaving countries scrambling over what to do with released detainees.Saudi Arabia and terror experts defended the program for terror suspects, saying it is largely effective. The Pentagon has said it's unlikely to change its policy on prisoner transfers to the kingdom.Saudi Arabia, the birthplace of al-Qaida leader Osama bin Laden and home to 15 of the 19 Sept. 11 hijackers, has pursued an aggressive campaign against militants but also sought to rehabilitate those it believes can abandon their violent extremist beliefs and reintegrate into society.These rehab programs — and the kingdom's assurances that they are effective — have been a major reason why most of the Saudis have been released from Guantanamo. Only 13 of the 133 Saudis detained there remain, said Saudi Interior Ministry spokesman, Gen. Mansour al-Turki."Besides the 11 people (on the wanted list) who came from Guantanamo, there are still 106 people who have gone through this rehabilitation program and are doing OK," al-Turki told the Associated Press by phone. Three others committed suicide in Guantanamo.The 11 were on a list of 83 Saudis and two Yemenis wanted for their connections to al-Qaida issued Monday by the Saudi government. The government knows where the rest of the 106 former detainees are.Among the 11 were two Saudis who have emerged as the new leaders of Yemen's branch of al-Qaida. The two appeared in a militant video last month calling for attacks against Arab governments and Western interests."Imprisonment only increased our persistence in our principles for which we went out, did jihad for, and were imprisoned for," Said Ali al-Shihri said during the video. Al-Shihri was jailed for six years in Guantanamo after his capture in Pakistan, and said he resurfaced as the branch's leader after completing the Saudi rehab program.The Saudi rehab program placed former Guantanamo detainees in secure compounds with facilities such as gyms and swimming pools. Imams gave them lessons on moderate Islam, and they met with psychologists and sociologists.Georgetown University terror expert Bruce Hoffman stressed that the vast majority of those going through the program have not rejoined extremist groups."I think it would be a mistake to view the program as a failure. Instead of looking at the 11, concentrate on the (others) who have not gone back to terror. ... I think the success has been remarkable," he said.The Pentagon also has said it is unlikely to stop prisoner transfers to Saudi Arabia. After the video of al-Shihri was released on extremist Web sites in January, Pentagon spokesman Navy Cmdr. Jeffrey Gordon said the U.S. sees the Saudi rehab program as admirable."The best you can do is work with partner nations in the international community to ensure that they take the steps to mitigate the threat ex-detainees pose," Gordon said.But Obama's Jan. 21 decision to close Guantanamo within a year has unleashed a debate in the U.S. about what to do with the remaining 245 inmates, some of whom are considered very dangerous. On Wednesday, the European Parliament said EU countries should help the administration accept Guantanamo inmates.Obama's announcement came about a week after the Pentagon issued a report saying that increasing numbers of those released have rejoined militant organizations and carried out attacks. Figures from December indicated that 61 of the former detainees have rejoined militant movements, up from 37 in March, it said, without detailing the nationalities of the 61.Former Vice President Dick Cheney has cautioned against closing Guantanamo, claiming the remaining inmates are "hard-core.""If you release the hard-core al-Qaida terrorists that are held at Guantanamo, I think they go back into the business of trying to kill more Americans and mount further mass-casualty attacks," he told the online political magazine Politico in an interview published Wednesday. "If you turn 'em loose and they go kill more Americans, who's responsible for that?"But al-Turki, the Saudi spokesman, stands by his country's rehab efforts, which hundreds of Saudis have passed through. He said the families of the 11 on the most-wanted list were the ones who alerted the government that the former Guantanamo detainees had disappeared."The program is meant to show society and the community and the families of these people that we are doing everything possible as a government to give these people all the chances they need," he said.Khaled al-Maeena, the editor of the English-language Saudi daily newspaper Arab News, said community involvement is the strength of the Saudi program."There is no use putting them in jail and creating more hatred. Once you put them in society they are under, in essence, your watch. You know what they do," he said.'

Obama and the Treatment of Terrorist SuspectsFebruary 4, 2009By Fred Burton and Ben West

U.S. President Barack Obama signed an executive order Feb. 1 approving the continued use of renditions by the CIA. The order seems to go against Obama’s campaign promises to improve the image of the United States abroad, as renditions under the Bush administration had drawn criticism worldwide, especially from members of the European Union. The executive order does not necessarily mean that renditions and other tactics for dealing with terrorist suspects will proceed unchanged, however.

Obama came into office promising changes in the way the United States combats terrorism. One of these changes was a new emphasis on legal processes and a shift away from controversial methods of treating terrorist suspects, like rendition, harsh interrogation techniques and secret prisons. The Obama administration can and will roll back some of these tactics, as demonstrated by the president’s Jan. 22 order to close the detention center at Guantanamo Bay. But some will continue.

Renditions and the Legal ProcessRenditions are a powerful tool for counterterrorism operations. They involve agents moving into a foreign country to execute a warrant. Once the fugitive is located, agents track, seize and transport him out of the country for interrogations, or to stand trial, as in the cases of Lebanese hijacker Fawaz Younis, CIA shooter Mir Amal Kanzi, 1993 World Trade Center bombers Abdel Basit (aka Ramzi Yousef) and Mahmud Abouhalima, and even Ilich Ramirez Sanchez (aka Carlos the Jackal).

Some of the individuals targeted for renditions have warrants out for their arrest, but are taking refuge in countries that either lack the law enforcement capability to capture them or cannot arrest and extradite them for political reasons. By contrast, the renditions where there is no indictment or warrant and where the suspect is transported to a secret prison for interrogation and detention without a public trial are far more controversial. Renditions of either kind virtually always occur with the knowledge of the host country, and usually with the host government’s express consent. (Few countries wish to shelter suspected terrorist masterminds.)

Renditions thus involve legal questions as much as they do diplomatic questions. Before renditions can be carried out, the Washington bureaucracy kicks into full swing. The U.S. State Department must consider the diplomatic ramifications. The ambassador in the host country must consider his or her position and judge the response of his or her contacts in the host country government. The U.S. Justice Department must also sign on. Finally, the agency in charge of actually nabbing the suspect must be willing to work within any restrictions imposed by any one of the many individuals who must approve the operation.

Even when the government ultimately deems a rendition operation legal, numerous factors can still stymie the effort (not least of which is that by the time all the necessary approvals have been obtained, the window of opportunity to nab the suspect might have closed). So while Obama’s executive order in theory permits renditions, it is only one part of the whole process; the appropriate members of Obama’s administration must also be on board.

Many members of the Obama administration also served in the Clinton administration, which was widely seen as considering all legal ramifications of potential renditions before taking any action. As a former deputy attorney general in the Clinton administration, new Attorney General Eric Holder enjoyed a reputation for deliberating on renditions to the point of inaction — effectively vetoing such operations.

While an appearance of greater attention to the law might come as a relief to many, actors in the field do not have the luxury of endless deliberation and total consensus — they have a narrow window of opportunity in which to act on perishable intelligence. Assuming that Obama’s administration acts with deliberation and pursues consensus building (as he himself has emphasized, and has demonstrated in the bipartisan nature of his Cabinet selections), the legality of renditions might become moot if they are not agreed upon in a timely manner. There is a fine line to walk between efficiency and legality in this field, with extremes on either side being detrimental to national security.

By their very nature, renditions are ad hoc and rarely fit into a nice, clean process, something that explains their controversial nature. They frequently occur in countries allied to the United States, meaning the practice falls outside the scope of war. And renditions resulting in suspects’ standing trial are far less controversial than those involving secret prisons, harsh interrogation tactics and reliance on third countries to carry out interrogations — tactics disfavored by the Obama administration.

Alternatives to Rendition

Apprehending suspects in foreign countries does not always involve controversial tactics. U.S. counterterrorism officials also use tactics abroad that are not forbidden under U.S. law, though they might be illegal if used within the United States (and could well be illegal in the country where U.S. agents employ them). In general, such tactics remain constant as administrations change. These tactics include surveillance of foreign targets, ruse operations and economic incentives and punishments to encourage cooperation in counterterrorism efforts.

Ruse operations, a less controversial way to apprehend fugitives than renditions, involve deception, obviating the need to jump through the bureaucratic hoops required for renditions. Ruse operations involve luring suspects to a location where U.S. agents can apprehend them legally. This involves persuading targets to venture into international waters, for example, or even to travel to the United States, where U.S. agents lie in wait.

While such tactics avoid the legal complexities surrounding renditions, they are extremely difficult to carry out. Suspects worth chasing around the world typically are not overly gullible, and know where it is safe to travel. So while there is no reason to believe that ruse operations will cease anytime soon, successful ones are few and far between.

Sometimes killing a terrorist target is both more efficient and less legally complex than renditions or ruse operations. Tactical strikes, such as the unmanned aerial vehicle-launched missile strikes against suspected al Qaeda targets in Pakistan, both remove a suspected terrorist target and avoid drawn-out legal processes. Like its predecessor, the Obama administration apparently sees striking at al Qaeda targets along the Pakistani-Afghan border as acceptable within the scope of the ongoing war in Afghanistan, despite Pakistani protests. The latest such U.S. strike came Jan. 23, just three days after Obama took office. Given the administration’s presumed hesitation based on legal reservations and an unwillingness to expand warfare beyond the Afghan theater, this tactic is unlikely to pop up in other areas of the world without a serious threat escalation.

Secret Prisons and Interrogation Issues

Obama on Jan. 22 also ordered the CIA to close its secret prisons around the world that hold detainees without adhering to U.S. legal standards. Because fewer than 100 detainees were held in these prisons, however, this is a minor point.

A different executive order also issued Jan. 22 applied the interrogation guidelines outlined in the U.S. military field handbook and the Geneva Conventions to the CIA. Obama and Holder also have made it clear that the new administration views waterboarding as torture and thus illegal, settling the debate on the matter.

Still, it is only a matter of time before new techniques used by interrogators in the field will face questions of legality and morality. No national leader can micromanage at the field level. Even though the Justice Department and senior White House officials in the Bush administration signed secret findings authorizing the CIA to conduct waterboarding in specific cases, tactical, field-level topics do not stick around at the level of national policy for very long.

With secret prisons on the way out, more restrictions on how agents act in the field and an expected decline in renditions, a greater U.S. reliance on third countries to carry out rendition operations is possible. During the Clinton and Bush administrations, countries like Egypt and Jordan were known to cooperate with U.S. agencies in detaining and interrogating prisoners.

Critics claimed that relying on third countries exploited a loophole that allowed the United States to see that unsavory acts were committed without directly carrying them out. Obama’s emphasis on using diplomacy to improve the U.S. image in the world suggests that his administration will turn to other countries for counterterrorism assistance instead of operating unilaterally. Obama already has asked for other countries to help out more in Afghanistan (specifically European countries). Obama might also tap third countries like Portugal, Switzerland or Germany to take in detainees leaving Guantanamo who are not sent back to home countries like Yemen and Saudi Arabia after the facility’s closure. Working with these countries to ensure safe delivery of the detainees out of U.S. custody will remove a lightning rod for criticism of the United States in the Muslim world.

Delegating counterterrorism responsibilities to other countries allows the United States to avoid the legal complexities inherent in renditions, secret prisons and harsh interrogation. But ultimately, increased reliance on other countries with different interests can enhance the overall complexity of missions. It is also important to remember that the United States possesses one of the most capable counterterrorism forces in the world, and that other countries simply cannot carry out the same missions that the United States does. This is not to say that pursuing U.S. interests abroad does not call for diplomacy (which is one of the administration’s main tools to fight terror), but that seeking international approval and establishing legal cover does reduce efficiency and restrain U.S. capabilities. Finding the balance between fighting terror efficiently and remaining within legal boundaries will be a key challenge for the Obama administration.

By JAMES TARANTOThe Obama administration must have been unhappy last night with ABC News, which sent out a pair of "Breaking News" emails: "Obama Likely to Order Charges Dropped Against Alleged U.S.S. Cole Bombing Mastermind," said the first. The second announced that the charges had, in fact, been dropped. The effect was to create an impression that the administration had gone even softer on terror than anyone had feared it would.

In fact, the dismissal of charges against Abd al-Rahim al-Nashiri was an insignificant development, as detailed in this Associated Press story. Charges against all other Guantanamo detainees, including 9/11 planner Khalid Sheikh Mohammad, had already been dismissed pursuant to President Obama's executive order halting the military-commission process pending review. The presiding judge in the al-Nashiri trial had effectively defied the order by scheduling an arraignment for today. His superior overruled him, and properly so. Whatever the merits of Obama's policies, he is the commander in chief, and military officers have a duty to follow his orders.

Al-Nashiri and the other defendants are not about to be turned loose. The cases against them were dismissed without prejudice, which means new charges can be brought against them. And they are still enemy combatants. Obama has declared his intention to remove them from Guantanamo by January, but he has not pledged to free them. Releasing these terrorists would endanger American security. Delaying their trial, or refraining from putting them on trial at all, would not.

PodcastJames Taranto on detainee policy.This points to perhaps the biggest error the Bush administration made in its detention policy: placing a heavy emphasis on war-crimes trials--"bringing terrorists to justice"--as opposed to detention for the purpose of keeping them off the battlefield. The administration thereby invited comparisons with the civilian criminal-justice system, with its solicitous attitude toward the rights of the accused. The Bush administration's law-enforcement mindset probably hindered national security, and almost certainly would have done so eventually without a change in policy.

Many Guantanamo detainees are dangerous but cannot be prosecuted, even in a military commission, because of a lack of evidence that they have committed specific crimes. Had the commission trials proceeded on schedule--and we have the Supreme Court to thank for delaying them this long--at some point the Bush administration would have faced a political problem in that it would have had to explain why the worst of the worst were getting trials while the merely worse of the worst were being held forever without charges.

As far as we know, top Bush officials were oblivious to this problem. We made the point to then-Attorney General Alberto Gonzales at a Wall Street Journal editorial board meeting in September 2006, and he showed no sign of comprehension. President Bush's public comments around the same time, in which he said he wanted to close Guantanamo after the military commissions had done their work, suggest he also did not understand it.

There is reason to think that the Bush administration was already succumbing to pressure to release detainees who could not be tried criminally, even if they still posed a danger. By the Pentagon's estimate, some 60 former Guantanamo detainees have returned to the battlefield. This number has prompted some skepticism, but no one denies that some detainees have resumed combat.

If the Obama administration follows its ideological inclinations, it will compound Bush's errors, releasing even more dangerous but unprosecutable terrorists, and perhaps moving trials to civilian courts, which could compromise national security by forcing the release of classified material and the freeing of terrorists who managed to get acquitted or to have convictions overturned on appeal.

But the new administration has not actually instituted any such policies; it has merely undertaken a review. It is possible that those conducting the review will figure all this out, and that they will find a way of reorienting detention policies to make security, rather than justice, the central priority.

Miranda rule may hamper detainee trialsNone of the men held at Guantanamo were advised of their rights against self-incrimination. That and other issues may cause problems for President Obama's goal of trying them in a civil legal system.By Julian E. Barnes and David G. Savage

February 10, 2009

Reporting from Washington — Accused in a 2002 grenade blast that wounded two U.S. soldiers near an Afghan market, Mohammed Jawad was sent as a youth to Guantanamo Bay. Now, under orders by President Obama, he could one day be among detainees whose fate is finally decided by a U.S. court.

But in a potential problem, Pentagon officials note that most of the evidence against Jawad comes from his own admissions. And neither he nor any other detainee at the U.S. prison at Guantanamo Bay, Cuba, was ever told about their rights against self-incrimination under U.S. law.

The Miranda warning, a fixture of American jurisprudence and staple of television cop shows, may also be one of a series of constructional hurdles standing between Obama's order to close the island prison and court trials on the mainland.

A procession of similar challenges -- secret evidence, information from foreign spy services and coerced statements -- also could spell trouble for prosecutors.

All of these problems illustrate the larger difficulty that lies ahead as the nation moves from the "law of war" orientation used by the Bush administration in dealing with detainees to the civilian legal approach preferred by Obama.

Obama last month announced sweeping changes, ordered humane treatment and invited in the international Red Cross. But the changeover will not be easy or quick, underscoring the complexity of undoing the Bush administration's policies.

John D. Hutson, a former chief judge advocate general of the Navy who advised the Obama transition team, said the new administration simply has not decided on rules to detain and try terrorism suspects -- those at Guantanamo now, or those captured in the future.

"It's still up in the air," Hutson said, "to the consternation of some of the human rights groups."

The administration has launched a review of the individual detainee cases, aimed at determining who can be prosecuted in federal courts.

"Miranda is an issue -- it is a potential issue in prosecution," said a senior Obama administration official, speaking on condition of anonymity because the review is ongoing. "The purpose of the review is to see how much of an issue and to see in what cases it is possible to proceed."

The administration is also reviewing whether the controversial military commission system instituted by President George W. Bush should be retained in some form for detainees who cannot be tried because of Miranda or other legal hurdles.

"The executive order purposely did not eliminate or do away with military commissions, and that is because there is an understanding that option needs to remain open to see what the review turns up," the senior Obama administration official said. "Some revised type of military commission might possibly be necessary, but that is very much an open question."

Under the Bush administration's wartime approach, prisoners were captured and interrogated for intelligence purposes, then held as a preventive measure. No Obama official has suggested that prisoners should have been read their rights on a battlefield.

But once the decision was made to put them on trial, the legal picture changed. Some legal experts said they should have been re-interviewed and warned that their statements would be used against them. Others said that for many, the history of their captivity makes trial in civilian court improbable.

"If you want to prosecute them, I have to think Miranda would apply. Miranda always applies in criminal prosecution," said a former Bush administration official, who spoke about pending cases on condition of anonymity. "Miranda hasn't applied to most things that happened in war before because there is no prosecution involved."

However, federal courts may find that Miranda does not apply to interrogations conducted for the purpose of intelligence gathering, said Gabor Rona, the international legal director for Human Rights First. Instead, judges may decide whether to accept confessions based on whether the statements were coerced.

"The idea that the failure to give Miranda warnings is a great impediment to using federal courts is a simplistic falsehood," Rona said.

The prosecution of Jawad, now 24, has been hampered in other ways. Before Jawad's military commission case was halted last month, a military judge had barred prosecutors from using Jawad's confession to Afghan authorities as trial evidence, saying it was obtained through torture.

Jawad is not among the so-called high-value detainees at Guantanamo, whom U.S. officials charge had significant roles in Al Qaeda or in planning the Sept. 11 attacks. But those cases could also present problems involving coerced evidence, classified information and constitutional rights because of the collision between civil and wartime measures for dealing with detainees.

Lawyers and judges amid the controversy have noted that neither Congress nor the Supreme Court has grounded U.S. policy in one arena or the other, leaving uncertain which set of rules applies.

President Obama has done a masterful job disguising his Administration's growing antiterror maturity, but this week produced further evidence that he is erring on the side of keeping the country safe rather than appeasing the political left. The Justice Department filed to dismiss a federal appeals case involving rendition, embracing an argument developed by . . . the Bush Administration.

APIn other words, the anti-antiterror lobby is being exposed as more radical than its putative banner carrier. As Mr. Obama is learning, the left's exertions to disarm the country's counterterrorism arsenal are as dangerous now as they were prior to his election.

In this closely watched case, the American Civil Liberties Union sued the flight-logistics outfit Jeppesen DataPlan in 2007 on behalf of Binyam Mohamed and four other Guantanamo detainees. The argument was that the Boeing subsidiary was complicit in arranging flights for rendition, a policy that transfers certain terror prisoners seized abroad to other countries for interrogation. Mohamed and his compatriots claim they are the victims of torture overseas.

The Bush Administration argued the case should be dismissed because open proceedings could damage national security by disclosing state secrets. A lower court agreed. Most everyone expected the Obama Justice Department to dump the secrecy line when the case came up for review before the left-leaning Ninth Circuit Court of Appeals on Monday, apparently including the Ninth Circuit.

Judge Mary Schroeder asked leadingly, "Is there anything that might have happened" to cause Justice to shift its views? "No, your honor," the Justice attorney, Douglas Letter, replied. A startled Judge Schroeder tried again. "The change in Administration has no bearing?" Mr. Letter reiterated that his positions had been "authorized" and "thoroughly vetted with the appropriate officials within the new Administration."

The Obama Administration says it will invoke the state secrets privilege more sparingly than its predecessor. But it is really admitting that lifting the hood on classified intelligence-gathering would let terrorists know what to expect, and to shift their operations to avoid detection. Perhaps the Obama team has also stumbled upon the larger game behind lawsuits like the one against Jeppesen -- which is to intimidate private companies into refusing to cooperate with the government on national security.

The left has failed to achieve its policy ambitions through Congress or by directly challenging the government in court. So the latest tactic is suing third parties such as Jeppesen -- note that the ACLU is not suing here to win Mohamed's release -- to hamstring the executive branch via the courts. These companies thought they were doing their patriotic duty by lending a hand.

But the anti-antiterror trial bar uses lawsuits to raise the costs for these private actors of cooperating with the intelligence community, and the legal exposure makes it that much more difficult for the feds to gain private cooperation. Sometimes the suits shut down such cooperation altogether. The telecom companies, faced with multibillion-dollar civil complaints over warrantless wiretapping, refused to proceed without legal immunity, and the 2007-2008 political dispute nearly ended the program. The FISA appeals court revealed last month that one (still anonymous) telecom even sued the government to opt out.

The larger story here is that the anti-antiterror lobby is losing the man it thought was its strongest ally. During his campaign, Mr. Obama talked as if he really believed that the Bush Administration was uniquely wicked on national security. Joe Biden cosponsored Senate legislation that would have prevented the executive branch from making state-secrets claims to shelve lawsuits, rather than shielding individual evidence from judicial (and public) scrutiny.

Now it seems that the Bush Administration's antiterror architecture is gaining new legitimacy, just as Eisenhower validated Truman's Cold War framework. Mr. Obama claims to have banned coercive interrogation techniques, except in those cases where more extreme measures are necessary to save lives. He says he'll shut down Gitmo in a year or so, but his subordinates -- including Elena Kagan during her confirmation hearings for Solicitor General this week -- admit that indefinite detention will still be necessary for some terrorists. He walked back his wiretap absolutism even before he was elected. Now the Administration has endorsed the same secrecy posture that he once found so offensive, merely saying that it will be used less frequently. We'll see.

These are all laudable signs of Mr. Obama's antiterror progress. Perhaps some day he'll acknowledge his debt to his predecessor.

WASHINGTON — Even as it pulls back from harsh interrogations and other sharply debated aspects of George W. Bush’s “war on terrorism,” the Obama administration is quietly signaling continued support for other major elements of its predecessor’s approach to fighting Al Qaeda.

In little-noticed confirmation testimony recently, Obama nominees endorsed continuing the C.I.A.’s program of transferring prisoners to other countries without legal rights, and indefinitely detaining terrorism suspects without trials even if they were arrested far from a war zone.

The administration has also embraced the Bush legal team’s arguments that a lawsuit by former C.I.A. detainees should be shut down based on the “state secrets” doctrine. It has also left the door open to resuming military commission trials.

And earlier this month, after a British court cited pressure by the United States in declining to release information about the alleged torture of a detainee in American custody, the Obama administration issued a statement thanking the British government “for its continued commitment to protect sensitive national security information.”

These and other signs suggest that the administration’s changes may turn out to be less sweeping than many had hoped or feared — prompting growing worry among civil liberties groups and a sense of vindication among supporters of Bush-era policies.

In an interview, the White House counsel, Gregory B. Craig, asserted that the administration was not embracing Mr. Bush’s approach to the world. But Mr. Craig also said President Obama intended to avoid any “shoot from the hip” and “bumper sticker slogans” approaches to deciding what to do with the counterterrorism policies he inherited.

“We are charting a new way forward, taking into account both the security of the American people and the need to obey the rule of law,” Mr. Craig said. “That is a message we would give to the civil liberties people as well as to the Bush people.”

Within days of his inauguration, Mr. Obama thrilled civil liberties groups when he issued executive orders promising less secrecy, restricting C.I.A. interrogators to Army Field Manual techniques, shuttering the agency’s secret prisons, ordering the prison at Guantánamo Bay, Cuba, closed within a year and halting military commission trials.

But in more recent weeks, things have become murkier.

During her confirmation hearing last week, Elena Kagan, the nominee for solicitor general, said that someone suspected of helping finance Al Qaeda should be subject to battlefield law — indefinite detention without a trial — even if he were captured in a place like the Philippines rather than in a physical battle zone.

Ms. Kagan’s support for an elastic interpretation of the “battlefield” amplified remarks that Attorney General Eric H. Holder Jr. made at his own confirmation hearing. And it dovetailed with a core Bush position. Civil liberties groups argue that people captured away from combat zones should go to prison only after trials.

Moreover, the nominee for C.I.A. director, Leon E. Panetta, opened a loophole in Mr. Obama’s interrogation restrictions. At his hearing, Mr. Panetta said that if the approved techniques were “not sufficient” to get a detainee to divulge details he was suspected of knowing about an imminent attack, he would ask for “additional authority.”

To be sure, Mr. Panetta emphasized that the president could not bypass antitorture statutes, as Bush lawyers claimed. And he said that waterboarding — a technique that induces the sensation of drowning, and that the Bush administration said was lawful — is torture.

But Mr. Panetta also said the C.I.A. might continue its “extraordinary rendition” program, under which agents seize terrorism suspects and take them to other countries without extradition proceedings, in a more sweeping form than anticipated.

Before the Bush administration, the program primarily involved taking indicted suspects to their native countries for legal proceedings. While some detainees in the 1990s were allegedly abused after transfer, under Mr. Bush the program expanded and included transfers to third countries — some of which allegedly used torture — for interrogation, not trials.

Mr. Panetta said the agency is likely to continue to transfer detainees to third countries and would rely on diplomatic assurances of good treatment — the same safeguard the Bush administration used, and that critics say is ineffective.

Mr. Craig noted that while Mr. Obama decided “not to change the status quo immediately,” he created a task force to study “rendition policy and what makes sense consistent with our obligation to protect the country.”

He urged patience as the administration reviewed the programs it inherited from Mr. Bush. That process began after the election, Mr. Craig said, when military and C.I.A. leaders flew to Chicago for a lengthy briefing of Mr. Obama and his national security advisers. Mr. Obama then sent his advisers to C.I.A. headquarters to “find out the best case for continuing the practices that had been employed during the Bush administration.”

Civil liberties groups praise Mr. Obama’s early executive orders on national security, but say other signs are discouraging. =====

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For example, Mr. Obama’s Justice Department last week told an appeals court that the Bush administration was right to invoke “state secrets” to shut down a lawsuit by former C.I.A. detainees who say a Boeing subsidiary helped fly them to places where they were tortured.

Margaret Satterthwaite, a faculty director at the human rights center at the New York University law school, said, “It was literally just Bush redux — exactly the same legal arguments that we saw the Bush administration present to the court.”

Mr. Craig said Mr. Holder and others reviewed the case and “came to the conclusion that it was justified and necessary for national security” to maintain their predecessor’s stance. Mr. Holder has also begun a review of every open Bush-era case involving state secrets, Mr. Craig said, so people should not read too much into one case.

“Every president in my lifetime has invoked the state-secrets privilege,” Mr. Craig said. “The notion that invoking it in that case somehow means we are signing onto the Bush approach to the world is just an erroneous assumption.”

Still, the decision caught the attention of a bipartisan group of lawmakers. Two days after the appeals court hearing, they filed legislation to bar using the state-secrets doctrine to shut down an entire case — as opposed to withholding particular evidence.

The administration has also put off taking a stand in several cases that present opportunities to embrace or renounce Bush-era policies, including the imprisonment without trial of an “enemy combatant” on domestic soil, Freedom of Information Act lawsuits seeking legal opinions about interrogation and surveillance, and an executive-privilege dispute over Congressional subpoenas of former White House aides to Mr. Bush over the firing of United States attorneys.

Addressing the executive-privilege dispute, Mr. Craig said: “The president is very sympathetic to those who want to find out what happened. But he is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency. So for that reason, he is urging both sides of this to settle.”

The administration’s recent policy moves have attracted praise from outspoken defenders of the Bush administration. Last Friday, The Wall Street Journal’s editorial page argued that “it seems that the Bush administration’s antiterror architecture is gaining new legitimacy” as Mr. Obama’s team embraces aspects of Mr. Bush’s counterterrorism approach.

Anthony D. Romero, executive director of the American Civil Liberties Union, said the sequence of “disappointing” recent events had heightened concerns that Mr. Obama might end up carrying forward “some of the most problematic policies of the Bush presidency.”

Mr. Obama has clashed with civil libertarians before. Last July, he voted to authorize eavesdropping on some phone calls and e-mail messages without a warrant. While the A.C.L.U. says the program is still unconstitutional, the legislation reduced legal concerns about one of the most controversial aspects of Mr. Bush’s antiterror strategy.

“We have been some of the most articulate and vociferous critics of the way the Bush administration handled things,” Mr. Craig said. “There has been a dramatic change of direction.”

WASHINGTON — The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.

In a two-sentence filing late Friday, the Justice Department said that the new administration had reviewed its position in a case brought by prisoners at the United States Air Force base at Bagram, just north of the Afghan capital. The Obama team determined that the Bush policy was correct: such prisoners cannot sue for their release.

“Having considered the matter, the government adheres to its previously articulated position,” wrote Michael F. Hertz, acting assistant attorney general.

The closely watched case is a habeas corpus lawsuit on behalf of several prisoners who have been indefinitely detained for years without trial. The detainees argue that they are not enemy combatants, and they want a judge to review the evidence against them and order the military to release them.

The Bush administration had argued that federal courts have no jurisdiction to hear such a case because the prisoners are noncitizens being held in the course of military operations outside the United States. The Obama team was required to take a stand on whether those arguments were correct because a federal district judge, John D. Bates, asked the new government whether it wanted to alter that position.

The Obama administration’s decision was generally expected among legal specialists. But it was a blow to human rights lawyers who have challenged the Bush administration’s policy of indefinitely detaining “enemy combatants” without trials.

The power of civilian federal judges to review individual decisions by the executive branch to hold a terrorism suspect as an enemy combatant was one of the most contentious legal issues surrounding the Bush administration. For years, President Bush’s legal team argued that federal judges had no authority under the Constitution to hear challenges by detainees being held at the military prison at Guantánamo Bay, Cuba, and elsewhere.

The Supreme Court rejected the Bush administration’s legal view for prisoners held at Guantánamo in landmark rulings in 2004 and 2006. But those rulings were based on the idea that the prison was on United States soil for constitutional purposes, based on the unique legal circumstances and history of the naval base.

Rights lawyers have been hoping that courts would extend those rulings to allow long-term detainees being held at United States military bases elsewhere in the world to sue for release, too. There are about 600 detainees at Bagram and several thousand in Iraq.

Jack Balkin, a Yale Law School professor, said it was too early to tell what the Obama administration would end up doing with the detainees at Bagram. He said some observers believed that the Obama team would end up making a major change in policy but simply needed more time to come up with it, while others believed that the administration had decided “to err on the side of doing things more like the Bush administration did, as opposed to really rethinking and reorienting everything” about the detention policies it inherited because it had too many other problems to deal with.

“It may take some time before we see exactly what is going on — whether this is just a transitory policy or whether this is really their policy: ‘No to Guantánamo, but we can just create Guantánamo in some other place,’ ” Mr. Balkin said.

After becoming president last month, Mr. Obama issued orders requiring strict adherence to antitorture rules and shuttering the Guantánamo prison within a year. He also ordered a review of whether conditions there meet the standards of humane treatment required by the Geneva Conventions, and a review of what could be done with each of the 245 detainees who remain at the prison.

On Friday, government officials said that a Pentagon official had completed the Guantánamo report, concluding that the site complies with the Geneva Conventions’ requirements for humane treatment — including procedures for force-feeding prisoners on hunger strike by strapping them down and inserting a nasal tube, a practice prisoners’ lawyers have denounced. The report does recommend that some prisoners be given greater human contact, however.

U.S. Will Give Qaeda Suspect a Civilian Trial DAVID JOHNSTON and NEIL A. LEWISPublished: February 26, 2009

WASHINGTON — The Justice Department, in an abrupt change in policy from the Bush administration, is preparing to bring terrorism-related charges against a man identified as an operative of Al Qaeda who has been held in a military brig for more than five years, government officials said Thursday.

The charges would move the case of the only enemy combatant to be held on American soil, Ali Saleh Kahlah al-Marri, into a civilian criminal court. The Bush administration had argued that he could be held indefinitely without being charged.

The decision also would allow the Obama administration to avoid taking a position for the time being on whether a president may detain legal residents indefinitely without trial.

The Justice Department faced a March 23 deadline to file a brief with the Supreme Court declaring whether it was continuing to hold to the Bush administration’s position that the government had the authority to detain legal residents like Mr. Marri indefinitely, without charges.

The decision to move Mr. Marri to a civilian court should give the Obama administration time to sidestep that issue for now as it sets about a large-scale review of detention policies that would affect those prisoners being held at Guantánamo Bay, Cuba, and those who may later be captured on suspicion of involvement with terrorism.

Mr. Marri was arrested in Peoria, Ill., in December 2001, and moved to the Navy brig in Charleston, S.C., in 2003. The Bush administration described him as a sleeper agent for Al Qaeda.

Mr. Marri is expected to be charged in Illinois as early as Friday with providing material support to terrorist groups. The Justice Department would then probably ask the Supreme Court to drop the case from its docket, saying that the issue was moot.

The decision to bring criminal charges against Mr. Marri was reported separately Thursday on the Web sites of The Washington Post and The New Yorker.

At least in part, the decision is a demonstration that Obama administration officials believe the nation’s civilian courts are capable of handling some terrorism cases.

Bush administration officials had argued that the president needed the authority to detain some terrorism suspects indefinitely because it was impracticable to prosecute many of them in civilian courts.

The issue as to whether there are some terrorism cases that cannot be successfully brought in a civilian criminal court is also at the heart of the debate about what to do with many of the 245 detainees still at Guantánamo.

Attorney General Eric H. Holder Jr. said Thursday that legal teams would reassess each of the inmates at Guantánamo to decide whether they should be prosecuted for criminal offenses or released.

“We need to look at these people again,” he said in an interview at his office at the Justice Department. “What kind of threats do they represent, if they pose any threats at all? We are determined to do this on an individualized basis.”

Mr. Holder said that some detainees were likely to be found to represent a low enough security risk to warrant their release, but that others would be likely to be found to have engaged in terrorist acts and would be prosecuted under a legal system that he said “must be seen as fair and must be fair.”

He said that department officials had not determined in what forum such prosecutions might take place, but that officials had not ruled out calling for legislation to create a new legal entity like a civilian national security court.

Several lawyers both inside and outside the academic world have said there was a need for such a new court that would allow the government to deal with the most troublesome group of terrorist suspects: those who are believed to be too dangerous to release but who could not be prosecuted effectively because it would require highly classified evidence.

Justice Department officials declined to discuss the developments on the Marri case. But after taking office, President Obama ordered a review of the situation and the decision to charge Mr. Marri in federal court reflected the results of that review, officials said.

Jonathan Hafetz of the American Civil Liberties Union, the lead lawyer in the case, said bringing charges would “definitely be a positive step in that the government will no longer be detaining Mr. Marri without charge and returning him to the civilian justice system.”

But Mr. Hafetz said the criminal charges should have been filed seven years ago, when Mr. Marri was first arrested in Peoria on suspicion of ties to Al Qaeda.

He said the Supreme Court should reject any government argument that the case is moot because the issue of whether the government may indefinitely detain legal residents or those in Guantánamo remains alive.

The case should go forward, Mr. Hafetz said, “to make clear, once and for all, that the indefinite military detention of legal residents or American citizens is illegal, and to prevent this from ever happening again.”

If the Supreme Court does not consider the case, it would leave in place a decision of the federal appeals court in Richmond, that upheld President George W. Bush’s authority to detain Mr. Marri indefinitely and without charging him.

In preparation for arguments before the Supreme Court, the Bush administration provided a sworn 2004 statement from Jeffrey N. Rapp, a military intelligence official. It said Mr. Marri had met with Osama bin Laden and Khalid Sheikh Mohammed, the chief plotter of the Sept. 11 attacks, in the summer of 2001.

“Al-Marri offered to be an Al Qaeda martyr or to do anything else that Al Qaeda requested,” Mr. Rapp said.

The Qaeda leaders told Mr. Marri, the statement said, to leave for the United States and to make sure he got there before Sept. 11.

The Obama Administration this week released its predecessor's post-9/11 legal memoranda in the name of "transparency," producing another round of feel-good Bush criticism. Anyone interested in President Obama's actual executive-power policies, however, should look at his position on warrantless wiretapping. Dick Cheney must be smiling.

APIn a federal lawsuit, the Obama legal team is arguing that judges lack the authority to enforce their own rulings in classified matters of national security. The standoff concerns the Oregon chapter of the Al-Haramain Islamic Foundation, a Saudi Arabian charity that was shut down in 2004 on evidence that it was financing al Qaeda. Al-Haramain sued the Bush Administration in 2005, claiming it had been illegally wiretapped.

At the heart of Al-Haramain's case is a classified document that it says proves that the alleged eavesdropping was not authorized under the Foreign Intelligence Surveillance Act, or FISA. That record was inadvertently disclosed after Al-Haramain was designated as a terrorist organization; the Bush Administration declared such documents state secrets after their existence became known.

In July, the Ninth Circuit Court of Appeals upheld the President's right to do so, which should have ended the matter. But the San Francisco panel also returned the case to the presiding district court judge, Vaughn Walker, ordering him to decide if FISA pre-empts the state secrets privilege. If he does, Al-Haramain would be allowed to use the document to establish the standing to litigate.

The Obama Justice Department has adopted a legal stance identical to, if not more aggressive than, the Bush version. It argues that the court-forced disclosure of the surveillance programs would cause "exceptional harm to national security" by exposing intelligence sources and methods. Last Friday the Ninth Circuit denied the latest emergency motion to dismiss, again kicking matters back to Judge Walker.

In court documents filed hours later, Justice argues that the decision to release classified information "is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power . . . to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access." The brief continues that federal judges are "ill-equipped to second-guess the Executive Branch."

That's about as pure an assertion of Presidential power as they come, and we're beginning to wonder if the White House has put David Addington, Mr. Cheney's chief legal aide, on retainer. The practical effect is to prevent the courts from reviewing the legality of the warrantless wiretapping program that Mr. Obama repeatedly claimed to find so heinous -- at least before taking office. Justice, by the way, is making the same state secrets argument in a separate lawsuit involving rendition and a Boeing subsidiary.

Hide the children, but we agree with Mr. Obama that the President has inherent Article II Constitutional powers that neither the judiciary nor statutes like FISA can impinge upon. The FISA appeals court said as much in a decision released in January, as did Attorney General Eric Holder during his confirmation hearings. It's reassuring to know the Administration is refusing to compromise core executive-branch prerogatives, especially on war powers.

Then again, we are relearning that the "Imperial Presidency" is only imperial when the President is a Republican. Democrats who spent years denouncing George Bush for "spying on Americans" and "illegal wiretaps" are now conspicuously silent. Yet these same liberals are going ballistic about the Bush-era legal memos released this week. Cognitive dissonance is the polite explanation, and we wouldn't be surprised if Mr. Holder released them precisely to distract liberal attention from the Al-Haramain case.

By the way, those Bush documents are Office of Legal Counsel memos, not policy directives. They were written in the immediate aftermath of a major terrorist attack, when more seemed possible, and it would have been irresponsible not to explore the outer limits of Presidential war powers in the event of a worst-case scenario. Based on what we are learning so far about Mr. Obama's policies, his Administration would do the same.

European countries that have offered to help the Obama administration close the detention center at Guantánamo Bay, Cuba, have begun raising questions about the security risks and requirements if they accept prisoners described by the Bush administration as “the worst of the worst,” according to diplomats and other officials.

Guantánamo Bay Naval Base (Cuba)The concerns, and a deep suspicion of whether the American intelligence community will share full information on the prisoners, are likely to complicate the resettlement effort, which is critical to President Obama’s fulfilling his pledge to close Guantánamo within a year of his taking office.

The offers, from Spain, Portugal, Italy, France, Belgium, Switzerland and other countries, have been widely seen as efforts to win favor with the new administration by helping to close the camp, which was a contentious issue during the Bush years.

Still, with a first round of talks on the Guantánamo issues scheduled for Monday in Washington between Obama administration officials and a high-level delegation from the European Union, several European leaders have recently emphasized that they can make no firm commitments until they are given complete details on the prisoners.

“We’d have to study concrete cases,” María Teresa Fernández de la Vega Sanz, Spain’s deputy prime minister, said in an interview last week.

Secretary of State Hillary Rodham Clinton recently told reporters she was “quite encouraged at the positive, receptive responses we’ve been getting” to requests for help in accepting Guantánamo detainees.

But some European officials said the Obama administration had yet to detail what would be involved in resettling detainees and whether the United States would also open its doors to Guantánamo prisoners, which the Bush administration declined to do.

It is not clear exactly what conditions the Obama administration may wish to impose, what the detainees’ immigration status would be or whether any detainees released to Europe would be eligible for complete freedom. “We understand, you have a big problem,” said one European official who said he would speak only if not identified. “And we appreciate what President Obama has said about closing Guantánamo. But that doesn’t automatically mean putting all the remaining inmates on a plane and sending them to Europe.”

Obama administration officials say some 60 of the remaining 241 detainees, those who cannot be sent to their home countries for humanitarian or other reasons, could be resettled in Europe.

A senior State Department official conceded that there were some concerns in Europe about accepting Guantánamo detainees. But the official, speaking on the condition of anonymity because he was not designated to speak publicly on the issue, argued: “It is really just a small effort to help us deal with a legacy of the past. This is something we inherited, too.”

A senior French official said that France was “ready to help,” but that “Guantánamo is an American responsibility.”

“It’s not an absolute condition, but it would be easier if the U.S. administration is willing to take some detainees,” said the French official, who spoke on the condition of anonymity, as did several officials in other countries, to avoid antagonizing the Obama administration.

American officials conceded that talks with Europe were likely to be complex, but said they were working with intelligence agencies to provide as much information about detainees as possible. The senior State Department official said that the White House was considering whether any detainees might be admitted into the United States, in part because of the European focus on that issue.

The detainees most often mentioned for resettlement in the United States are 17 Uighurs, members of a Chinese Muslim minority, who American officials say cannot be returned to China for fear of mistreatment. The men have argued that they were allies of the United States who were wrongly rounded up in Afghanistan and Pakistan in 2001. After court battles, the Bush administration conceded that the men were not enemies of the United States.

Both American and European Union officials described the talks scheduled for Monday as a critical first step for any possible resettlement of Guantánamo detainees, saying that common European ground rules would ease the way toward decisions by individual countries.

Jacques Barrot, a European Union vice president who is to lead the European delegation, said there was an opportunity “to turn together a dark page” in the history of the fight against terrorism. But officials said the delegation was arriving with far more questions than answers.

Among the host of questions, European officials said, was whether the former prisoners would need to be monitored, whether they would have full travel rights in Europe and whether detainees might entangle their countries’ courts in years of legal battles by suing former American officials for their imprisonment and treatment.

Obama administration officials are working on a two-pronged plan to close the prison. They are analyzing how many detainees might be tried, most likely in the United States, and working toward transferring scores of the others.

The Bush administration often failed when it asked other countries to accept detainees, partly because those requests were usually accompanied by public comments defending the imprisonments by describing the detainees as dangerous terrorists.

The new administration is sending a different message. “We are less vested in trying to prove that these people are rightly held,” the senior State Department official said.

Given that stance by the Obama administration, some European officials say Washington’s focus on sending the detainees to Europe raises many questions.

Germany’s interior minister, Wolfgang Schäuble, has suggested publicly that if Guantánamo detainees pose no security risk, there is no reason the United States should not take them.

Pekka Lintu, Finland’s ambassador in Washington, said, “We should know what is being asked of us.”

William Glaberson reported from New York, and Steven Erlanger from Paris. Reporting was contributed by Victoria Burnett from Madrid, Judy Dempsey from Berlin, Margot Williams from New York and Mark Landler from Washington.

LONDON — A Spanish court has taken the first steps toward opening a criminal investigation into allegations that six former high-level Bush administration officials violated international law by providing the legal framework to justify the torture of prisoners at Guantánamo Bay, Cuba, an official close to the case said.

The case, against former Attorney General Alberto R. Gonzales and others, was sent to the prosecutor’s office for review by Baltasar Garzón, the crusading investigative judge who ordered the arrest of the former Chilean dictator Augusto Pinochet. The official said that it was “highly probable” that the case would go forward and that it could lead to arrest warrants.

The move represents a step toward ascertaining the legal accountability of top Bush administration officials for allegations of torture and mistreatment of prisoners in the campaign against terrorism. But some American experts said that even if warrants were issued their significance could be more symbolic than practical, and that it was a near certainty that the warrants would not lead to arrests if the officials did not leave the United States.

The complaint under review also names John C. Yoo, the former Justice Department lawyer who wrote secret legal opinions saying the president had the authority to circumvent the Geneva Conventions, and Douglas J. Feith, the former under secretary of defense for policy.

Most of the officials cited in the complaint declined to comment on the allegations or could not be reached on Saturday. However their defenders have said their legal analyses and policy work on interrogation practices, conducted under great pressure after the 2001 terrorist attacks, are now being unfairly second-guessed after many years without a terrorist attack on the United States.

The court case was not entirely unexpected, as several human rights groups have been asking judges in different countries to indict Bush administration officials. One group, the Center for Constitutional Rights, had asked a German prosecutor for such an indictment, but the prosecutor declined.

Judge Garzón, however, has built an international reputation by bringing high-profile cases against human rights violators as well as international terrorist networks like Al Qaeda. The arrest warrant for General Pinochet led to his detention in Britain, although he never faced a trial. The judge has also been outspoken about the treatment of detainees at Guantánamo Bay.

Spain can claim jurisdiction in the case because five citizens or residents of Spain who were prisoners at Guantánamo Bay have said they were tortured there. The five had been indicted in Spain, but their cases were dismissed after the Spanish Supreme Court ruled that evidence obtained under torture was not admissible.

The 98-page complaint, a copy of which was obtained by The New York Times, is based on the Geneva Conventions and the 1984 Convention Against Torture, which is binding on 145 countries, including Spain and the United States. Countries that are party to the torture convention have the authority to investigate torture cases, especially when a citizen has been abused.

The complaint was prepared by Spanish lawyers, with help from experts in the United States and Europe, and filed by a Spanish human rights group, the Association for the Dignity of Prisoners.

The National Court in Madrid, which specializes in international crimes, assigned the case to Judge Garzón. His acceptance of the case and referral of it to the prosecutor made it likely that a criminal investigation would follow, the official said.

Even so, arrest warrants, if they are issued, would still be months away.

Gonzalo Boye, the Madrid lawyer who filed the complaint, said that the six Americans cited had had well-documented roles in approving illegal interrogation techniques, redefining torture and abandoning the definition set by the 1984 Torture Convention.

Secret memorandums by Mr. Yoo and other top administration lawyers helped clear the way for aggressive policies like waterboarding and other harsh interrogation techniques, which the C.I.A. director, the attorney general and other American officials have said amount to torture.

The other Americans named in the complaint were William J. Haynes II, former general counsel for the Department of Defense; Jay S. Bybee, Mr. Yoo’s former boss at the Justice Department’s Office of Legal Counsel; and David S. Addington, who was the chief of staff and legal adviser to Vice President Dick Cheney.

Mr. Yoo declined to comment on Saturday, saying that he had not seen or heard of the petition.

Mr. Feith, who was the top policy official at the Pentagon when the prison at Guantánamo was established, said he did not make the decision on interrogation methods and was baffled by the allegations. “I didn’t even argue for the thing I understand they’re objecting to,” he said.

But Mr. Boye said that lawyers should be held accountable for the effects of their work. Noting that the association he represents includes many lawyers, he said: “This is a case from lawyers against lawyers. Our profession does not allow us to misuse our legal knowledge to create a pseudo-legal frame to justify, stimulate and cover up torture.”

Prosecutions and convictions under the Torture Convention have been rare.

Reed Brody, a lawyer at Human Rights Watch who has specialized in this issue, said that even though torture was widely practiced, there were numerous obstacles, including “a lack of political will, the problem of gathering evidence in a foreign country and the failure of countries to pass the necessary laws.”

This year for the first time, the United States used a law that allows it to prosecute torture in other countries. On Jan. 10, a federal court in Miami sentenced Chuckie Taylor, the son of the former Liberian president, to 97 years in a federal prison for torture, even though the crimes were committed in Liberia.

Last October, when the Miami court handed down the conviction, Attorney General Michael B. Mukasey applauded the ruling and said: “This is the first case in the United States to charge an individual with criminal torture. I hope this case will serve as a model to future prosecutions of this type.”

The United States, however, would be expected to ignore an extradition request for former officials, although other investigations within the United States have been proposed. Calls for the Justice Department to open a criminal investigation have so far been resisted by the Obama administration, but for more than four years, the Justice Department ethics office has been conducting its own investigation into the work of Mr. Yoo and some of his colleagues.

While the officials named in the complaint have not addressed these specific accusations, Mr. Yoo defended his work in an opinion column in The Wall Street Journal on March 7, warning that the Obama administration risked harming national security if it punished lawyers like himself.

“If the administration chooses to seriously pursue those officials who were charged with preparing for the unthinkable, today’s intelligence and military officials will no doubt hesitate to fully prepare for those contingencies in the future,” Mr. Yoo wrote.

Rachel Maddow gleefully put on her show (anyone who will disrepute Bush and or Rep in general) a former Gitmo soldier who stated he was ashamed of the abuse he witnessed of prisoners. Abuse which according to his account included someone punching one of the prisoners in the face and another time a prisoner thinking he was going to be executed when he was asked to kneel (obviously because in his country this would have meant he was going to have his head chopped off).

Of course such incredible abuse and along with a few seconds or minutes of waterboarding places Bush/Cheney/Rumsfiled up there with Stalin, Hitler, Saddam and all the rest of the butchers in modern history.

I am not ashamed of W et al, just of the left that mocks them for political reasons.

It sounded to me that any high school football player receives more abuse than any of these prisoners; at least from this eye witness account."Torture" - what a joke!

"Guantanamo: 99% of the abuse is of the prisoners against the guards ..."

I think I was low on that estimate. It is based on my opinion from all that I have read and heard from first hand accounts. Here is one report, though I was unable to find the most recent author that prompted me to post that comment. Jdn, please also take into account my bias in not believing most allegations the captured terrorists make against American serviceman.

Doug, did you read the entire report that you posted as your reference? And look at it's conclusions?

It basically repudiates the government's position."The data shows, remarkably, that the detainees are comparatively cowed and unthreatening to their guards but pose a substantial danger to themselves."

As for being "respectful and well-behaved" well, I doubt if I would be either if I was being held for years away from my family and homeland without anycharges or proof of wrongdoing; being denied even basic rights.

Gitmo May Be One of the Toughest Prisons on the Planet--for the Guards

The Washington Post story (linked below) declares that Guantanamo is "one of the toughest prisons on the planet."Last May, in an attempt to put to rest some of this nonsense about Gitmo, Rear Admiral Mark Buzby, then commander of Joint Task for Guantanamo, explained the difference between "the Guantanamo that exists in ... pop culture and the media and most people's minds" and the "Guantanamo that exists here, the one that I see every day".Our Camp 5 and Camp 6, which is where 75 percent of our population -- detainee population lives, those two buildings are actually models of a facility in Indiana -- a prison in Indiana and a prison in Michigan that were brought down here and built, so that the very same conditions that U.S. Bureau of Prisons prisoners live in are what our detainees live in, in terms of their place of incarceration.Every detainee, no matter what their compliancy status is -- in other words, how well they behave and everything else -- they all get at least two hours of outdoor recreation with other people every day, every single day. They also get a shower every single day, which is actually more than the Bureau of Prisons offers their high-security folks. For those other 25 percent that are in highly compliant status -- in other words, they behave very well and follow the camp rules -- they are in a place called Camp 4, which is a very open-air, communal sort of facility, where they live in groups of six in a bunk room, if you will. And they have access to recreation about 22 hours a day, including group recreation and group prayer and all that sort of thing.So to say that our conditions are especially arduous or different than ... what a normal prisoner might find in the Bureau of Prisons systems ... I think is probably twisting the truth quite a bit.So life in Gitmo doesn't seem too hard for detainees, especially considering that most of them are accused of fighting with al Qaeda and the Taliban.Life for the guards, however, is not so easy. See this detainee activity report from last April. Just a few statistics on what the Gitmo guards endured in 2007:135 physical assaults132 assaults with bodily fluids1,734 incidents of failure to comply with ordersThat means there was about one assault against the guards for every detainee held in Gitmo. Contrast that with New York state prisons. Erik Kriss, a spokesman for New York's Department of Correctional Services, tells me that in 2008 the rate of inmate assaults against staff throughout the state was 9 for every 1,000 inmates. So the assault rate is 100 times higher at Gitmo than the New York prisons.Posted by John McCormack on February 23, 2009 04:30 P

War On Terror: A federal court says that even those held in Afghanistan must also be tried in American courts. Why not? After all, if there is no global war on terror, how can anybody be prisoners of that war?

Although the "war on terror" no longer exists, we still have the "overseas contingency operation" in Afghanistan. They are still shooting at us and we are still shooting at them.

We are still capturing and holding what used to be called enemy combatants or even that more archaic term — prisoners of war.

Now a federal judge has ruled that where detainees are captured or held, not what they were trying to do, namely kill Americans, is paramount.

Whatever the proper term for them is now, U.S. District Judge John Bates decided Thursday that those not captured in Afghanistan but being held there are endowed, like their Gitmo counterparts, with the same inalienable rights as the American citizens they were sworn to kill.

That includes the right to challenge their incarceration in American courts.

After the Supreme Court ruled last year that Guantanamo detainees had the legal right to challenge their detentions in U.S. courts, four detainees captured outside Afghanistan being held at Bagram Air Force Base in Afghanistan thought they had a get-out-of-jail-free card. After that ruling, petitions were filed on their behalf in a U.S. district court.

The Obama administration took the position that Bagram Air Force Base, where some 600 jihadists are currently held, differed from Gitmo in that Bagram is located in an active war zone even if Gitmo is technically U.S. territory where the U.S. Constitution holds sway. That was when the war on terror was still called a war.

Judge Bates rejected this when he ruled that non-Afghan detainees captured outside that country and moved to Bagram should also have access to U.S. courts to prevent the U.S. from being able to "move detainees physically beyond the reach of the Constitution and detain them indefinitely."

Sen. Lindsey Graham, R-S.C., rightly called the decision "dangerous and naive," and said it puts troops in harm's way for judges to micromanage distant wars.

"Using this logic, in World War II it would not have allowed us to capture Nazi operatives anywhere but in Germany," Graham said.

Ironically, at a time when foreign laws and treaties seem to be finding their way into U.S. court rulings, both the Supreme Court ruling and Judge Bates' ruling seem to fly in the face of Article 84 of the Geneva Conventions, which says prisoners of any stripe captured in a war shall not get tried in civil courts.

In short, we're in violation of the Geneva Conventions here.

Bates' ruling affects only three of the four who challenged their detention at Bagram. He reserved judgment on Haji Wazir because he is an Afghan citizen.

The other three are from outside Afghanistan. Fadi al Magaleh and Amin al Bakri are from Yemen. Redha al-Najar is from Tunisia. All say they were captured outside Afghanistan.

Bates argued that it is "one thing to detain those captured on a surrounding battlefield at a place like Bagram" but that it "is quite another to apprehend people in foreign countries — far from any Afghan battlefield — and then bring them to a theatre of war, where the Constitution arguably may not reach."

But how can there be a battlefield if there is no war?

"Overseas contingency operations," like war, are hell. They are not crime scenes where U.S. troops should be required to read their opponents their rights, take witness testimony, gather evidence and remember where they were on a particular afternoon.

We would ask, what part of "global war on terror" does Judge Bates not understand?

The entire globe is an active theater of war, and where prisoners are captured or held makes no difference. But this is the nonsense you get when an administration plays word games after actively opposing the military tribunals where these matters should be settled.

Is that documentation sufficient for you to acknwledge that a fair case can be made?

Actually "No".

"Life for the guards is not so easy" I don't doubt that nor have I ever said it was "easy".

But then life for the detainees is not all "easy" either...

Doug's own support reference indicated that life for the detainee is quite the opposite.The detainee is the one who is being abused. Abuse of the detainees has been well documented and frankly ismuch worse than the detainees limited abuse of the guards.

JDN, I also made clear in the second post that I was only posting my opinion, which should have clear to you on the first. I'll expand on my opinion, but it is only "wrong" if you prove it is not my opinion, lol.

In my opinion, about 99% of America's service men and women are good people and they by and large enlist for the right reasons and serve honorable. Along the way, some are provoked into or choose bad behaviors at times, but most of those stories turn out to be stories. What did John Kerry say, tearing ears off and burning villages. I look at all those stories skeptically although once in a while one turns out to be true.

On the 'other side', you have terrorists who are on a mission to terrorize the western world, spread jihad and kill infidels. Among the detainees, you may have an innocent bystander, that happens in war. In my opinion, I doubt that more than 1% of the detainees did not have some affiliation with the mission of terror I just described. We didn't detain some lady from the grocery store for looking Arab or Muslim ; these were people captured in combat and are held for national security reasons.

Once captured, the detainees are still on a mission and discrediting the United States is part of it, whether to bait a guard into unsavory behavior or just to invent the story for the international inquisitors and journalists.

"Doug's reference" was the quote I took from a general telling how frequent these abhorrent abuses against the guards are. The link was provided so the reader could trace the quote. That you found something else interesting in that report is fine with me, but it is now 'your reference'. I have no idea how something else later in the report would change the General's quote unless he later retracted what he said so clearly previously. He didn't.

I've disclosed my bias ad nauseum on this - I'm pulling for western civilization and safe neighborhoods - and I have no curiosity whatsoever why you or others see some kind of moral equivalence between American servicemen and captured terrorists, as if this is USA playing Jihad in a quiddich contest rather than America fighting off suicide bombers and planners to disrupt their agenda of carnage in what used to be called the global war on terror.

Doug, I absolutely agree with your statement, "In my opinion, about 99% of America's service men and women are good people and they by and large enlist for the right reasons and serve honorable."

However your original post to which I disagreed stated,"Guantanamo: 99% of the abuse is of the prisoners against the guards while 99% of the stories are about alleged abuse against the prisoners."

The two statements are not congruous.

As for "your" source, it seems reasonable to me that if one is to quote a few sentences, the entire body of work should be examined. In this instance, the study documented numerous examples of abuse by guards against detainees and repudiated the general's biased comments. Imagine if I quoted a few "make nice"passages out of the qu'ran? I bet GM would be all over me!

I too am "pulling for western civilization" however I don't believe the solution is throw away all that we believe in and that has made our country great. Or to deny that abuse of detainees has taken place; that is simply wrong.